For Law Nerds Only
Nov. 24th, 2003 10:00 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ciroccojReading through material on Contracts by Mail, Fax, and E-Mail. It's so nice when you're reading a decision that shows that a judge is living in the real world.
Rudder v. Microsoft Corp, 1999. I see Microsoft in the style of cause and I'm all prepared to cheer a "little guy" up against Goliath Microsoft (I hate Microsoft, BTW).
Then I start reading the case. Rudder lived in Ontario, signed an e-contract with MSN, got screwed in some way, and wanted to bring action against MSN in Ontario. Despite a clear statement in the contract that disputes would only be heard in King County, Washington state.
Why did Rudder still think he could bring action in Ontario? Because the jurisdiction clause wasn't "brought to his attention". It was part of an agreement ("click here if you agree") but only part of the agreement was visible on the screen - you had to scroll through to read the rest of it. Therefore anything not clearly visible should have been seen as a "fine print" clause, which needs to be explicitly brought to a client's awareness in order to be valid.
Never mind that he had to click twice on the "I agree" button, and that the second time the contract was preceded by "If you click 'I agree' without reading the membership agreement, you are still agreeing to be bound by all of the terms of the membership agreement, without limitation."
The plaintiff further admitted that he had scrolled through the agreement, to check the price. Just not the rest of the contract.
Anyway. I love judicial snarkiness, and there's a lot of it in the decision. The judge concludes that there's no difference between having to scroll down an e-document and having to flip pages in a paper document. He also says, "...it is clear that the plaintiffs seek to avoid the consequences of specific terms of their agreements while at the same time seeking to have others enforced... to give effect to the plaintiff's argument would... move this type of electronic transaction into the realm of commercial absurdity... Moreover, given that both of the representative plaintiffs are graduates of law schools and have a professed familiarity with Internet services, their position is particularly indefensible."
Heh. I hate to cheer for Microsoft, but then again, I hate seeing idiots win just because the judge who hears their case is ignorant.
***
My law-geek soul was tickled last weekend when I read an article in the paper re. the accident in Bowmanville that backed up the 401 for 10km, when we were trying to drive from Toronto to Kingston.
Apparently, it involved an 18-wheeler that lost some wheels - they flew past the median and crushed a car on the other side of the highway, killing the woman inside. The day before the accident, the Supremes had ruled that making the offense of "losing the wheels off your 18-wheeler" an offense of absolute liability (ie, if it happens, you're guilty, even if you took every precaution against it - therefore, no innocent until proven guilty) was not unconstitutional.
The Canadian Charter of Rights has an "Innocent Until Proven Guilty" clause, #11(d), but it also has a "Now, in the Real World" clause, #1. Clause #1 reads, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
It's pretty tough to get a law past Clause #1. There's a whole rigamarole the gov has to do to demonstrate that a law which curtails some fundamental right is a "reasonable limit" that can be "demonstrably justified." But it can be done, and the day before the accident in Bowmanville, it had been.
The Supremes decided that holding truck companies liable the moment a truck lost its wheels without giving them a chance to defend themselves was a reasonable limit to their right to be considered innocent until proven guilty. The purpose of the absolute liability clause, that of helping to prevent the many highway deaths that result from flying truck wheels, is sufficiently important to justify the charter violation.
And I have to say, I agree. If it's so hard to keep wheels on trucks that even the most conscientious company is going to lose them from time to time... then maybe we need a safer alternative to trucking. Like, say, trains.
Rudder v. Microsoft Corp, 1999. I see Microsoft in the style of cause and I'm all prepared to cheer a "little guy" up against Goliath Microsoft (I hate Microsoft, BTW).
Then I start reading the case. Rudder lived in Ontario, signed an e-contract with MSN, got screwed in some way, and wanted to bring action against MSN in Ontario. Despite a clear statement in the contract that disputes would only be heard in King County, Washington state.
Why did Rudder still think he could bring action in Ontario? Because the jurisdiction clause wasn't "brought to his attention". It was part of an agreement ("click here if you agree") but only part of the agreement was visible on the screen - you had to scroll through to read the rest of it. Therefore anything not clearly visible should have been seen as a "fine print" clause, which needs to be explicitly brought to a client's awareness in order to be valid.
Never mind that he had to click twice on the "I agree" button, and that the second time the contract was preceded by "If you click 'I agree' without reading the membership agreement, you are still agreeing to be bound by all of the terms of the membership agreement, without limitation."
The plaintiff further admitted that he had scrolled through the agreement, to check the price. Just not the rest of the contract.
Anyway. I love judicial snarkiness, and there's a lot of it in the decision. The judge concludes that there's no difference between having to scroll down an e-document and having to flip pages in a paper document. He also says, "...it is clear that the plaintiffs seek to avoid the consequences of specific terms of their agreements while at the same time seeking to have others enforced... to give effect to the plaintiff's argument would... move this type of electronic transaction into the realm of commercial absurdity... Moreover, given that both of the representative plaintiffs are graduates of law schools and have a professed familiarity with Internet services, their position is particularly indefensible."
Heh. I hate to cheer for Microsoft, but then again, I hate seeing idiots win just because the judge who hears their case is ignorant.
***
My law-geek soul was tickled last weekend when I read an article in the paper re. the accident in Bowmanville that backed up the 401 for 10km, when we were trying to drive from Toronto to Kingston.
Apparently, it involved an 18-wheeler that lost some wheels - they flew past the median and crushed a car on the other side of the highway, killing the woman inside. The day before the accident, the Supremes had ruled that making the offense of "losing the wheels off your 18-wheeler" an offense of absolute liability (ie, if it happens, you're guilty, even if you took every precaution against it - therefore, no innocent until proven guilty) was not unconstitutional.
The Canadian Charter of Rights has an "Innocent Until Proven Guilty" clause, #11(d), but it also has a "Now, in the Real World" clause, #1. Clause #1 reads, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
It's pretty tough to get a law past Clause #1. There's a whole rigamarole the gov has to do to demonstrate that a law which curtails some fundamental right is a "reasonable limit" that can be "demonstrably justified." But it can be done, and the day before the accident in Bowmanville, it had been.
The Supremes decided that holding truck companies liable the moment a truck lost its wheels without giving them a chance to defend themselves was a reasonable limit to their right to be considered innocent until proven guilty. The purpose of the absolute liability clause, that of helping to prevent the many highway deaths that result from flying truck wheels, is sufficiently important to justify the charter violation.
And I have to say, I agree. If it's so hard to keep wheels on trucks that even the most conscientious company is going to lose them from time to time... then maybe we need a safer alternative to trucking. Like, say, trains.
