The Nebulous Modern ‘Contract’

One of the most annoying things I have seen on the road is those little signs on the back of dump trucks stating, simply, “Not responsible for damaged windshields.” These really get under my skin because the people who run these companies are claiming that somehow, by plastering a sign on the back of their truck, they have absolved themselves of any responsibility for securing their load. ‘Oh, yeah, we can scatter gravel all over the road without care and damage people’s property . . . we have a sign.’

I have been tempted on many occasions to put my own sign on my car: “Not responsible for sledge-hammer damage.” I could then pay an entertaining visit to these companies’ offices and show them what it is like to have valuable property damaged unjustly. Of course I can destroy their property, I have a sign!

The idea that a person or business can declare themselves above traditional traffic, civil, and contract law is pretty ludicrous, and yet we see it all the time. These truck companies, blithely declaring that they need not obey traffic safety laws, are a fine example. ‘Shrink wrap’ or ‘click through’ software licenses are another—a form of ‘contract’ that doesn’t require any signature or meaningful assent, and yet is declared by the manufacturer to be legally binding on your activities with a lawfully purchased product.

I propose a simple remedy. For a contract, statement, assertion, or agreement to have any legal validity, let’s require that it be physically signed in ink by legal representatives of all concerned parties. If Joe’s Trucking Company can get all drivers on area roads to sign a release, and Joe the CEO signs all of those releases too, then we’ll call it a legally binding contract regarding responsibility for damaged windshields. We can also come up with some kind of electronic system, but it would still require two-sided, individual assent. If Microsoft can provide me with a contract physically signed by people with authority to bind Microsoft legally, and they obtain my signature on said contract before giving me their software, then I’ll consider their license agreements binding.

This kind of rule would make it very simple to determine enforceability of corporations’ and individuals’ ludicrous assertions. Did a valid representative of the corporation or individual sign it in ink? Did the person who is expected to be bound by that assertion also sign it in ink? If the answer is not ‘yes’ on both counts, it would not be a valid contract and nobody would have to obey it. The end.

The two-way signature is an important element here. First off, idiocy like click-through software licenses and ‘we have the right to damage your car’ signs that nobody has signed at all would be completely invalidated outright. Second, many companies—wireless phone providers, for example—have you enter into a contract for service, but that contract is only signed by you. This grants them the leeway to put all kinds of crazy requirements on you at essentially no cost (in time, money, or effort) to them. By requiring the extra step of having an official of the company (with legal authority to bind the company) sign the document as well, maybe these companies will be less likely to saddle you with onerous ‘contracts’ for every last little thing they or you do and save them for the really important things.

This kind of system would protect the consumer, but it would also protect businesses. After all, nobody is ever really sure how far a one-way or click-through license will go in court. By eliminating these entirely and establishing a clear set of guidelines about enforceability, there will never be a question as to weather a valid contract can be enforced. Consumers will know with certainty when they are bound by a contract’s terms, and so will businesses.

As for those trucking companies, come on guys, just secure your load and spray off the gravel before you head out onto public roads. It can’t be that difficult.

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.