The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
The key difference, is that the US is many jurisdictions (Federal + 50 states + a lot of others, from counties to cities to territories to MANY others), and the variance amongst those is high.
The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
In the US, these things have huge variability. There are well regulated states, and well, the others.
Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisions as you like if you send them to me" or "I will pay whatever".
If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time.
Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
Yes, of course.
We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.
Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening.
The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
Where it gets a little muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.
This all just needs statutory laws and eliminate TCs for basic services. It is a scam.
Rental contract sure. Employment contract yeah.
I bet a single set of statutory rights for consumer and provider could cover most things.
B2B is different.
Of course you do. I have a fixed contract with my mobile carrier - if they want to change rates, tough luck. Once the current contract expires, they can indeed notify me that the new contract will auto-renew with a new rate, and I can either accept it or choose a new carrier. But they very much can't change prices, or alter services rendered, while the current contract is in force.
Of course it irks them much to not be able to sell me less for more. But they can't do anything short of disconnecting me and that is unspeakable for a mobile operator.
I like this very much.
The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).
I have the same in the car. Been postponing for 2 years now.
I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
That’s domestic terrorism (charges)
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.