Retailer adds 'immortal soul' clause to sale conditions

http://www.news.com.au/technology/gamers-risk-everlasting-limbo-as-retailer-adds-immortal-soul-clause-to-sale-conditions/story-e6frfro0-1225854448399

by RiderOfGiraffes • 16 years ago

50 27 16 years ago

news.com.au

jacquesm2• 16 years ago

Excellent point about why terms and conditions agreed to online are not as a rule legally enforceable.

You may be able to withhold service from people violating your T&C but you will not be able to go much further than that.

More reading on this:

http://www.wilmerhale.com/publications/whPubsDetail.aspx?id=...

Deestan• 16 years ago

I my opinion, retailers have had this clause for years, in the form: "We reserve the right to change these terms at any time without notification. Your continued use of PRODUCT constitutes your acceptance of the new terms."

Mc_Big_G• 16 years ago

This is hilarious. I had this idea years ago, but never had the opportunity to implement it. It's good to see a company with a sense of humor who realizes that no one reads these things.

mseebach5• 16 years ago

In Denmark, and to a slightly lesser extend Europe, consumer protection is so strong that pretty much any language in the T&C is pointless, and thus there's no point in reading it.

To a certain extend this is a good thing, and it's been instrumental in persuading people that online shopping is safe. But I think it's a bad idea to completely remove the right of consumers and businesses to enter into specific agreements.

There was recently an EU ruling deciding that if you buy something online, regret the purchase and return the goods (this is already the right of the customer), you're entitled to a refund of the shipping charges also. Before this ruling, the vendors only loss on a customer regretting his purchase was handling (time) - this is comparable to the risks of running a physical store. But now the vendor stand to loose actual money from shipping - and this is a bad thing.

First, this loss has to be covered on the margins - the consumers end up paying anyway, it's just less transparent.

Second, it pulls away the competitive advantage for vendors already offering this service, and hands it to the ones that don't. I.e. benefiting those who don't go the extra mile to service the customer on the dime of those who do.

Third, it could hamper e-business in areas where shipping is expensive.

But the most troubling thing about this is consumers getting used to vendors having zero rights. I witnessed an exchange on the forum of a club recently, where somebody was organizing a party with dinner. The cost was roughly €20 and should be transferred to the hosts bank account in advance. One participant voiced concern that something might come up, and another (not the host) casually stated that he should just pay, he could always reclaim the money.

Even if this in a narrow legal sense might be so (and I'm not sure that's the case, but IANAL) this is simply no way to treat volunteer hosts of a party, that, at the time you've decided to not show up, already spend your money on food for you.

Entering into an agreement is a two-way commitment, and even though we should make it hard for shady vendors to defraud customers (including taking their souls), teaching the customer that he has no commitments or obligations is a bad idea in the long run.

mseebach5• 16 years ago

A concrete suggestion to solve this: Make a standard T&C that's quite tight on it's protection of the consumer, but allow (some) exceptions to be made, on the condition that the exceptions are clearly stated (and not hidden in the bulk of a long T&C) and each exception must be individually and specifically accepted on checkout.

flipbrad5• 16 years ago

in the UK, we have the Sale of Goods Act which will imply terms into consumer contracts, and a number of other statutory protections that apply default terms (and strike down others), e.g. UCTA (unfair contract terms act) and UTCCR (unfair terms consumer contracts regulations). their teaching should be mandatory at school

sdfx• 16 years ago

>First, this loss has to be covered on the margins - the consumers end up paying anyway, it's just less transparent.

Apart from consumer protection there's an other reason for the government to do this: It's an implicit subsidy of retail stores. By making online shopping more expensive, states are supporting local businesses.

I love strong consumer protection and the benefits that come along with it. But I have never send anything back and have to pay higher prices for some guys who are abusing the system by ordering 10 different products just to send 9 back after they've tried them without even paying for shipping...

drunkpotato2• 16 years ago

But I think it's a bad idea to completely remove the right of consumers and businesses to enter into specific agreements.

You're making a fallacy of the excluded middle. Very few would argue that we should completely remove the right to enter into a contract.

However, that's not what a purchase is. When you pay for an object, that is a sale. When your business is oriented to selling a service to many individuals, that is also, properly, a sale, and is quite distinct from entering into a contractual arrangement with another corporate entity.

When you pay for a service, the terms of that service should be easy to understand and not require pages of legal boilerplate. A service oriented to consumers should have no expectation that the customer has a lawyer reading the terms of that service. As such, the terms should be clear, explicit, and most of all, short.

The solution to the horrendous way it's done in the US is not to point at Europe and say "look, it's also horrendous there!" That is a silly, thoughtless, contentless argument that far too many are using just reflexively.

Edit: Removed "In other words" at the beginning of last paragraph.

mseebach5• 16 years ago

I'm Danish, so I'm not "there", I'm "here". I'm criticizing my own system from within. The article I'm reacting to is from an Australian website referencing a UK firm. What people do and don't do in the US doesn't seem to apply, and certainly not for for calling me silly and thoughtless, thank you very much.

A purchase is the entering of a contract to exchange goods for money. The terms of the contract are for most developed nations fixed and encoded in culture and the law, so we don't think about it in our day-to-day lives. But that doesn't change the fact that it is a contract. You appear to be American, skim the TOC of Article 2 (Sales) of the Uniform Commercial Code if you don't believe me. (http://www.law.cornell.edu/ucc/2/)

lkijuhyghjm2• 16 years ago

The distance selling act - which gives you the right to say no and return it within 7 days - was lobbied for by the online retailers.

They felt people wouldn't order online if there were too many scams. Now that people are comfortable ordering online they are presumably lobbying for it to be revoked.

One reason for the shipping refund is that importers use it as a way around VAT. They typically sell some item for 1e with 25e shipping and so it comes in under the VAT limit.

jacquesm2• 16 years ago

The reason for the change was many shady operators offering very low prices for goods but overcharging for shipping.

mseebach5• 16 years ago

I wasn't aware of that, but it's a good point, and definitely something that should be addressed.

drinian• 16 years ago

Mozy used to include "DO NOT TAUNT HAPPY FUN BALL" in their T&C...

dhimes• 16 years ago

I seem to recall that from a SNL skit.

flipbrad5• 16 years ago

they should watch out, though. Taking the piss in T&Cs is a) an overt acknowledgement that they are aware that nobody reads them, and b) that they don't take their T&Cs seriously. Since it is an essential part of contract formation that the parties and an intent to create legal relations (ICLR - hence why contracts between mates, family members etc are rarely found to be valid), points a) and b) could be evidence of the company having no ICLR, and all those terms and conditions - protecting their rights in a dispute - could potentially be dumped!

prs• 16 years ago

Summary: "Software company hiddes a message in their End-user license agreement (EULA) that promises a prize to anyone who actually reads it. Only after 3000 downloads the prize was finally claimed."

CWuestefeld• 16 years ago

A COMPUTER game retailer revealed that it legally owns the souls of thousands of online shoppers

To be pedantic, the retailer does not own the souls of the shoppers. It owns options on those souls. Until such time as the retailer exercises the option, those souls still belong to their original owners.

flipbrad5• 16 years ago

I presume you could buy it from them. Now, who wants to help me start up a soul market?

DanielStraight2• 16 years ago

Sure, people don't read terms and conditions, but I have to ask, do retailers care? Usually terms and conditions are tucked into a quiet corner so no one will ever find them. They're intentionally written in an almost unreadable style, even though it's not necessary. Some sites don't even have them, despite dealing with tons of user-submitted content. Stack Overflow has been claiming to license user-submitted content under cc-wiki since its inception without ever asking users for this permission. Stack Overflow cannot even legally display content from users without permission, yet they presume to license it out to third parties and even provide data dumps of it. People don't read terms and conditions because companies don't care. Stack Overflow has grown into one of the most popular sites on the web without ever settling the most fundamental legal issue related to the site. I've even emailed Stack Overflow about this. Their response can best be summed up as "Huh?" Companies only provide terms and conditions to cover their asses. They don't care what's in there any more than customers do. If they don't think their asses need covered, they skip the terms and conditions altogether.

lkijuhyghjm2• 16 years ago

There is a big tag at the bottom of each page saying you submit it under cc-wiki. This is a good thing, it's better than you having to read through 100s of pages of their own license to discover that they reserve the rights to put in a pay wall later.

DanielStraight2• 16 years ago

This is exactly Stack Overflow's (mis)understanding. The statement on the bottom of the page is that user-submitted content is licensed under cc-wiki. That they are granting you a license to use it under cc-wiki. The statement is not that you will license your content to Stack Overflow under cc-wiki. I can easily say, "The entire content of Hacker News is in the public domain." Without asking for permission though, this statement is meaningless. Same with Stack Overflow.

flipbrad5• 16 years ago

To be fair, the T&Cs are not written in 'an almost unreadable style'. They're written so that in a court dispute, the meaning will be clear. They're readable by lawyers, and all the less fuzzy for it. The problem is that they're unreadable by the actual parties to the transaction!

jheriko• 16 years ago

Hopefully someone important will pay attention and do away with the sillyness of user agreements.

I don't have to sign one when I buy my food, electronics or whatever...

flipbrad5• 16 years ago

generally, you don't have to sign anything to form valid contracts. You're agreeing to stuff just by buying the food - have a look for T&Cs posted in the shop, at the till, etc

maarek• 16 years ago

Am I the only one bugged by the incorrect use of "year 2010 Anno Domini"? Anno Domini means Year of Our Lord, so the proper usage is 'AD 2010', as in "The Year of Our Lord 2010".

Retailer adds 'immortal soul' clause to sale conditions

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