OnLawyering Is Back!

How It Went Dark

After many months of darkness, OnLawyering is back on the web! It did not disappear for lack of interest.

No, the real story is an object lesson in the law of contracts. As I left my old law firm and started my new one, Rich Cassidy Law, a bill from our web hosting service went astray. I only realized that I had missed it when the service shut OnLawyering down. I tried to pay the bill, but the service demanded proof that I owned the site.Data center 1

That sounds reasonable enough. It was the quality of the proof that the service required that proved unreasonable, and in fact, unattainable. They wanted a copy of the bank statement reflecting the credit card payment of the original invoice. That invoice was paid more than seven years ago, and paid by the third party that helped me set up the original site. I no longer the use the services of that third party, but the business tried to help. Unfortunately, the original bank records were destroyed by flood.

In the end, I just could not prove — to the satisfaction of the web host – that I owned the site. It was necessary to reacquire the name and rebuild the web site. Fortunately, we had backed up substantially all of the old posts and we are in the process of re-posting them.

What’s Contract Law Got to Do with It?

What’s all this got to do with contract law? Plenty. The web hosting service was unyielding in demanding its very high standard of proof. And it was within its rights in doing so because of the terms of original contract for service that we agreed to.

Read It or Weep!

Did I read the terms of service? I don’t remember, but I doubt it. In fact, I think the third party that set up the original website probably “agreed” on my behalf. It was one of those “point and click” contracts, and the truth is, hardly anyone reads them. We go to buy goods or services and the vendor requires that we acknowledge agreement to buy. There is no negotiation and there is no opportunity to negotiate.

Usually the price of what we are buying is small (and that’s nice) and we are eager to buy now. Who takes the time to read the contract? Hardly anyone!

Of course, most sellers of goods and services sold with these contracts have powerful incentives to devote real time, energy and money to creating a contract that is very favorable to the them, often unreasonably so.

Is this the way freedom of contract is supposed to work? It is not a new problem, but it is one that has been exaggerated by the anonymous nature of internet commerce and the dizzying pace of modern life and business. Is there better legal answer? Should the law be reformed to better balance the interests of the parties?

Having lived through the Uniform Law Commission’s unsuccessful effort to develop a balance in the Uniform Computer Information Transactions Act, I assure you the problem is a very, very tough one.

And with so called “Smart Contracts” rushing over the horizon, it is about to get far tougher indeed. Smart contracts will be “negotiated” computer to computer, without human intervention.

Read Your Contracts and Keep a Copy

For now, we are left with the old standard advice: read your contracts and, if you sign, keep a copy! Sounds easy, but it’s not.

Anyway, it’s nice to once again have a public outlet within which to share my ruminations.


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