It can and has been in many cases in many legal systems. For example, let’s say you walk into my store to buy a dish washer. I say ”here is an extended warranty that I will give you. Just sign” you sign it instead of reading 15 pages of boilerplate. In the end of the document it says you now owe me 10 billion dollars. Doubt I will be able to enforce it in most legal systems.
That’s not an “I didn’t read it” defense. That’s a “term is this contract is unconscionable” defense. They’re not the same thing. I was speaking strictly of the former.
Also, striking an unconscionable term typically does not void the whole contract. Just the term in question.
As a general rule I believe many online terms of use, eulas and similar online contracts are examples of procedural unconscionability, in that length is often too long that one can be expected to read it in the day to day action of "surfing the web", I believe this is also the opinion of the EU and many of its member states, hence the limitations found on enforcement of such contracts.
Aside from that many of these contract have terms that might be considered substantive unconscionability - for example if terms state that what you post can be used by the company that owns the service for marketing of the company or the service I feel this would not make it through most legal systems that I feel before the attempt are not inherently corrupt.
I would personally be shocked if the EU voids click-wrap agreements for unconscionableness based on the process alone. I’m not super familiar with EU law; is that what it truly says? I rather doubt it because I do business in the EU and have been asked to agree to terms as a condition of making purchases online there.
Online retailers in the nordics occasionally try to post terms and conditions that contradict consumer protection laws, for instance retailers being on the hook for warrantying product(ion) defects for 5 years after purchases of products that ought to be durable, like electronics. The retailers win out on a substantial amount of the population not contesting it, but if you as a consumer go through the process the findings is basically always in your favor, despite there being agreements to something else. Telecommunications providers also have a long history of having their consumer invoices being voided for being unconscionable despite service agreements, especially in cases with children playing with devices (but otherwise also), going all the way back to the landline age.
Right. But those are substantively unconscionable terms, not about the agreement process itself.
sorry I did not phrase that very well, when I said as a general rule I believe I meant that if put to the test it could be often won on length alone in conjunction with the activity being done, but almost always these contracts are substantively unconsionable and of course people contest that, because most people don't get angry and want to fight for no reason, they do it because it is violating their rights.
As an example I have an email account with site A. I go to site A and log in, they suddenly spring a large new contract for me to read, I cannot get through to do what I came to do, it will take me 5 minutes to read so I click OK because I am on my way to check my email with site A. Procedurally this is not reasonable behavior.
What would be reasonable?
"Hi, we are changing our terms of service, you can see it at this link and agree. If you don't have the time right now you can do it later, but in three days you will lose access to the service unless you agree to terms."
There are however lots of other laws in the EU which may in fact make this behavior substantively unconscionable anyway. I certainly believe there would also be substantive arguments to be made in this case.
The council directive on unfair terms in consumer contracts puts every pre-canned contract in scope, and unfair provisions on a contract are rule non-binding (if the contract can keep existing after the unfair bits are taken out).
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...
Right. But those are substantively unconscionable terms (“unfair provisions”), not about the agreement process itself.
All of these cookie forms have the same set of toggles. At a high level all anyone is saying is that we should just declare any kind of tracking cookies unconscionable terms for this kind of dialog box. Caching, shopping carts, explicit log in, these are totally fine and you don't need a dialog. The tracking stuff is not that hard to define and it should just be declared unconscionable.
That's why billionaires don't buy their own dishwashers
This is bullshit.
https://www.nbcnews.com/news/us-news/disney-says-man-cant-su...
"Disney is trying to have a widower's wrongful death lawsuit dismissed and sent to arbitration because the man had signed up for a Disney+ account several years ago."
Now what happened was that Disney quit fighting over really bad PR. But the court challenge would have liteky succeeded.
What's bullshit? You mean to say the dishwasher buyer would legally be on the hook for billions?
Its bullshit that a terms of use can "agree" to what amounts to unconscionable terms.
Mozilla with their Thundermail just tried saying in their ToS that if you're mentioned at all in anything legal, you agree to pay their legal fees.