Contractarianism and Weirdness: The Meat of Mechanics, Fine Print in Focus – a Postmodern approach.
I have just started watching the fourth season of The Twilight Zone. It was, in the first episode of season four, which is entitled “In His Image,” that I began to realize the difference between a series such as this and, say, almost any David Lynch film. They are the exact inverse of one another.
Simply, I suggest, that the difference between almost any episode in The Twilight Zone versus that of a David Lynch film is that the TWZ episodes are about 80% normal with a 20% zany twist whereas DL films are the total inverse (20% normal / 80% weird). I am comfortable saying that a film, which falls below a 70/30 ratio, has about a 80% chance of being or becoming unsuccessful.
Similarly, this is how one might start thinking about the range of legal relationships among individuals and between individuals with corporations.
It appears safe to say that individuals entering into legal relationships with other individuals are probably engaging in relationships that are about 80% fair, with a 20% rate of oppression. These relationships are often reduced to contracts and the purity of such relationships are measured by the supposed sophistication of the parties, the bargaining power of each, the inability or unlikeliness of overreaching by either party, and the replaceability of the services often performed by, or the goods provided by individuals.
In contrast, individuals entering into legal relationships with corporations (or any entity that is not, in itself, human) will probably be placed in a position that is the exact converse (20% fairness / 80% oppressive). This is commonly represented and understood by individuals entering into transactions known as “contracts of adhesion,” due to the lack of bargaining power that an individual may have (or not have) as compared to a corporation, the likeliness of sophistication that the corporation exhibits, and the fact that the corporation has something of want or need by the individual which there is not always a proper substitute for. I am comfortable saying that there is a 70/30 collar which takes into account individuals who may have the ability to bargain with a corporate entity due to the occasional unique financial position of such individuals, and the existence of closely held corporations which make it easier for individuals to actually engage in bargaining.
Surely, we have become accustomed to entering into such relationships with corporate entities, and by now, we are so used to surrendering rights that we would otherwise be entitled to, that it no longer makes a difference because we never really knew what it was like to exercise those rights in the first place. We have grown up with the corporation. We are numb to its overreaching.
One should note that while most corporations are closely held (80-90%) the other 10-20% are publicly traded corporations that have a collection comprising most of the legal relationships that exist within our society. For example, public companies like: Comcast, At&t, Verizon, and Amazon probably have a larger contractual base than, say, of all of the accounts held by 80% of closely held businesses.
Readers note: I am about halfway through the first episode of season 4 of TWZ and the first paragraph of this essay is being called into question. There appears to be more weirdness in this episode as a whole, than when compared to any episode contained in the past three seasons. This may be because: this episode might have been a season premiere, the fact that it doubles the run time of an average episode, any possible changes in production staff from the third to fourth season albeit that almost all episodes are written by Rod Searling, or simply because it starred George Grizzard. Back to the point…
Take eBay as an example. Have you ever actually read the fine print of your eBay user agreement? Assuming you do have an eBay account, don’t you? The eBay user agreement states:
“When you give us content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.”
This basically means that if you are the author of some original piece of work, once you try to sell it on eBay, you automatically grant eBay legal rights your work. But, not just any right. You grant them an irrevocable, perpetual, royalty-free, sublicensable right just by using their service. It’s ironic how the terms state “but no other rights” – I wasn’t certain that there were any other rights left except maybe for the right to encumber such intellectual property.
So, what do you do? Well, you have several options: 1) Consent (which is what you have been doing anyway and which is why you have never really understood what it meant to exercise your legal rights); 2. Agree and try to fight eBay at a later time with little or no chance of success based on theories such as “contracts of adhesion,” or “unconscionability”; or 3) refuse their services and try to find an adequate substitute. Good Luck.
The correlation of inversions between weirdness and overreaching is just another hemline. But, it is a hemline that somehow makes sense… only in The Twilight Zone.
Have you been harmed or wronged by a business? Do you feel mislead? Deceived, perhaps? Call Friedman Legal today for a free consolation at 888-411-1677