"reasonably equal ability" doesn't mean ability to modify the terms of the deal ... What I learned in B-school Biz Law was "ability to contract". And that is VERY different. Your ability to modify may be voting with your feet, but unless you are buying air to breath on the space station, that's considered sufficient. Even if every vendor has the same onerous terms, that's Anti-trust, not contract law.
IIRC, the essence of the legal decisions upholding the EULA turn on one point - the ability to view the license BEFORE making an irrevocable decision. If software came with a license you couldn't view and no return policy, that's probably unenforceable. But the typical "out" is something like "If you do not agree with this license, click EXIT below and return the software". You see the license and have the ability to opt in/out - and that's the point where a contract is established. It's really the same thing at the big-box retailer or when you open a brokerage account - there is a contract there. One you explicitly sign or walk. The other? You agree implicitly by completing the transaction - which implies consent to the store's posted policies and the ones on the back of the receipt. Both are legally enforceable. Quoting from the textbook (West's Business Law - Alt UCC Edition - 1981), pg 59/60: "The Elements of a Contract" "1. Agreement: An agreement includes an offer and an acceptance. A party must offer to enter into a legal agreement, and another party must assent to the terms of the offer 2. Consideration: Any promises made by the parties must be supported by legally sufficient consideration - something of legal value. 3. Contractual capacity: Both parties entering into the contract must have the contractual capacity to do so; they must be recognized by contract law to possess characteristics qualifying them as competent parties. 4. Legality: The contract must be made to accomplish some goal that is legal. 5. Reality of assent: Apparent consent of both of the parties must be genuine. 6. Form: The contract must be in whatever form the law requires." Attacks on the EULAs go after #s 4 and 5 (click to agree). Quoting again: "For example, illegal bargains, agreements in restraint of trade and 'adhesion contracts' made by parties who have inordinate amounts of bargaining power are not enforced." and "Adhesion contracts arise when one party forces the other party to adhere to dictated terms or go without the commodity or service in question." (page 121). However, you have to remember that courts are reluctant to insert their judgment and if you can show alternatives, then it's not "go without". So, I guess in summary... I don't think the FAX/Email disclaimer are worth the bits they consume, and EULAs probably are contracts. But what do I know - free legal advise from a non-lawyer is maybe worth what you paid for it, never more. -----Burton -----Original Message----- From: Mark Medici [mailto:[EMAIL PROTECTED]] Sent: Wednesday, June 26, 2002 9:12 AM To: Burton M. Strauss III; [EMAIL PROTECTED] Cc: [EMAIL PROTECTED]; Cameron Turner Subject: RE: Auto Complete Password Caching Burton wrote: > I can't imagine that these disclaimers would hold up. At best, these > disclaimers seem to be an offer, in the contract law sense. > But the essence > of contract law is two (or more) parties of reasonably equal > ability to > contract and an agreement (with evidence, such as action > according to the > contract or signatures). What about Software Licenses? Does the licensee have a "reasonably equal ability" to modify the terms of the contract? No, it's a "take it or leave it" situation. Perhaps the same logic applies to the disclaimer: If you don't agree, send-back or delete the email. Personally, I think you're right and that these disclaimers are just silly (bordering on arrogant) and unenforceable. But I feel the same about most software licenses, and somehow they manage to persist.
