Wednesday, April 24, 2013 |
For most people, signing a contract is a serious consideration. But the digital age has changed that. Now, you might sign contracts several times a day without so much as blinking before you click "I agree." When you buy something online, visit a website, enrol your child in a gym class, rent a power tool, or go on vacation, you sign (or click) "I agree" on your computer to those incomprehensible texts called "Terms and Conditions." They are annoying, but most of us sign them to get the service or product we want.
Little do we understand that what we are signing are like contracts, and hard to get out of. The technical term for them is "boilerplate," and the American legal scholar Margaret Radin has written a new book about how these clickable agreements are more than annoying: they are actually a threat to democracy. The book is called Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and Radin spoke with Michael Enright recently on The Sunday Edition about why you should think before you click.
"Boilerplate" is a slang term that stems from the early days of newspaper printing, when plates were set with metal type that couldn't be changed, said Radin. "It became used as just a slang term for these alleged contracts that we all get that we can't change," she said. "The thing that makes [them] boilerplate is that they come to us in ways we can't change, we're not negotiating, we receive them...I call us recipients rather than contracting parties."
They can also be known as "adhesion contracts," a term that dates back to 100 years ago and also refers to how "stuck" we are to the terms, said Radin.
Radin cites an increasingly common all-encompassing boilerplate that, essentially, forces the signer to give up any right to sue for damages "for any reason whatsoever," including employee negligence. Her niece was recently given such a form to sign when signing her daughter up for daycare. This is obviously extremely problematic. "It used to be true that the courts would say it's a matter of public policy that people cannot exculpate themselves of their own negligence, but that is changing," said Radin. "There was a recent case in B.C. where a firm got out of their own negligence, and this is happening widely in the States."
This is one of the main reasons for Radin's book. "There's a social contract that we all have collectively that there is such a thing as not harming other human beings," she said. "We don't want to live in anarchy or the state of nature where we have to run around checking out everybody that might harm us...so when firms can distribute these [boilerplates] to people so that they don't have to be responsible for harming anybody, and now my niece has to be super-responsible -- what is she supposed to do? Check the employees records?" And she cannot amend the wording of the contract.
"Most of the time they'll say 'sign this the way it is or you can't leave your child,'" said Radin.
"When by clicking 'I agree' or signing something you don't understand you let a firm out of its social responsibility...we're out of civilized society," she said. "Sometimes we're [giving up] our right to any legal remedy...I think that courts shouldn't allow that."
In a way, these boilerplates are cheapening the concept of the contract, said Radin. "The whole idea of contract is based on individuals who, of their own free will, negotiate something that makes both of them better off," she said. "So it really makes a mockery of contractual ordering."