Terms of service

I find it weird that when you buy a product or use a service, you're technically entering into a contract. It seems like we've gone through enormous legal hoops to make this work. Where's the contract when you buy something at a supermarket? How can you make a contract by showing someone an ad? How can you sign a contract by installing some software? Why I mean, sure, you can say that buying something is a contract, but you could also say it's a tomato for certain definitions of tomato.

Beyond their legal definition as an agreement between one or more parties, I think of a contract as something you negotiate, where everyone has an ability to influence the terms. That means there's an assumption that all the parties are first class: they can all understand the law and are on relatively equal footing. For that reason, these kind of contracts are often minimally regulated because, well, why should governments interfere in the affairs of consenting legal persons in their own boardrooms?

But most people aren't dealing with those, they get take-it-or-leave-it contracts where some company tells you "accept this or bugger off". You have no ability to negotiate, and in recent years it's become common to even sign away your right to sue entirely. Even if you wanted to, the legal disparity between Joe iTunes user and Apple's multimillion dollar legal team isn't even David v. Goliath, it's Ant v. Giant Magnifying Glass. To remedy this we have slowly built a large body of consumer protection laws and regulations, restricting contract terms to the point where many contracts have sections that are completely unenforceable.

At a certain point you have to wonder, why do we bother? I mean, sure, these consumer agreements share some features with contracts, and you can kind of make them fit into the same framework, but the question you have to ask is whether unifying these two ideas is more useful than keeping them separate. In software we run into this problem all the time; you come up with some clever framework whose ideas are so elegant you just want to cram everything into it. Sometimes it can actually work well to ignore reality a little bit if it makes your abstraction easier, but go too far and you start to end up with a big warty abstraction covered in special cases. Sound familiar?

I think we need a new thing. Some kind of alternative legal framework for consumer agreements that doesn't run through contract law. Terms of service would be set not by agreements between companies and each individual, but by companies and government agencies negotiating collective agreements on behalf of the people they represent. To an extent this is the inevitable outcome of ever-broadening consumer legislation anyway, but I don't think contract law + legislation is the right tool for the job. Legislation moves pretty slowly, so companies can often create loopholes that exist for a few years before they get stamped out, and on the other side too much consumer legislation is pretty overbearing too.

Ultimately, I feel like there's not much point having all these fake contracts that nobody reads, can't negotiate, and are mostly superseded by legislation anyway, especially when they all basically say the same things. I think it would be better for both companies and consumers if we just had a single framework for products and services being sold to end-users that everyone could understand. Plus then we could send all the lawyers off to do more useful things like ruin software for everyone.