Tag: accordo tra le parti

Il “clickwrap agreement” si è formato correttamente se la videata è sufficientemente chiara e bloccante nel procedere se non si leggono le Terms

Ecco la videata dell’app Uber per l’accettazione delle condizioni genrali, trea c ui la clausola arbitrale (queste liti son quasi sempre generate dal decidere l’accettazione o m,eo di querst’u,ti,a)

Eric Goldman ci notizia di MA Supreme Court 7 giugno 2024, Good v. Uber, SJC-13490.

La sintesi iniziale:

<<Relevant to this narrow inquiry, Uber presented its terms
of use to Good through its app in a manner that prevented Good
from continuing to use Uber’s services on his cellular telephone
unless Good both clicked a checkbox indicating that he had
“reviewed and agree[d]” to the terms and activated a button
labeled “Confirm,” further indicating his assent. This blocking
interface included a large graphic image of a clipboard holding
a document; near the bottom of the document was an “X” alongside
a graphic of a pencil poised as if to sign a legal instrument.
The interface was focused and uncluttered; it clearly alerted
Good multiple times, in prominent boldface text, that the
purpose of the blocking screen was to notify Good of Uber’s
terms of use. It encouraged Good to review those terms and
provided an identifiable hyperlink directly to the full text of
the terms of use document.
We conclude that these and other features of Uber’s
“clickwrap”2 contract formation process put Good on reasonable
notice of Uber’s terms of use, one of which was the agreement to
arbitrate disputes, like the present one, concerning the
personal injuries he suffered. Further concluding that Good’s
selection of the checkbox adjacent to the boldfaced text stating
that he “agree[d]” to the terms and his activation of the
“Confirm” button reasonably manifested his assent to the terms,
we reverse the order of the Superior Court judge denying Uber’s
motion to compel arbitration, and we remand for entry of an
order to submit the claims to arbitration>>.

 

Il testo troppo piccolo (illegibile, di fatto) non rende il contratto unfair

Interessante segnalazione del prof.  Eric Goldman sull’oggetto.

Secondo l’appello della California 21 aprile 2023, 2nd App. Dist.-Div. 8th,. Yanez Fuentes c. Empire Nissan, B314490  Los Angeles County  Super. Ct. No. 20STCV35350  :

<<Tiny font size and unreadability go to the process of contract formation, however, and not the substance of the outcome. Font size and readability thus are logically pertinent to procedural unconscionability and not to substantive unconscionability.
To make this logical point plain, imagine shrinking a contract fair in substance down to less than one–point font: a font so minute as to be completely unreadable without a strong magnifying glass. The fairness of the contract’s substance, however, remains unchanged. Font is irrelevant to fairness.
We go over this significant point in more detail.
Fuentes accurately summarizes the difference between procedural and substantive unconscionability. We quote page 17 of her brief. “Procedural unconscionability specifically ‘concerns the manner in which the contract was negotiated and the circumstances of the parties at that time.’ (Kinney v. United Health Care Services, Inc. (1999) 70 Cal.App.4th 1322, 1329.) Substantive unconscionability focuses on overly harsh or one-side[d] results.”
Font size is not the substance of a contract. Terms can be fair or unfair in substance, no matter the font size. When an employer puts a contract in an unreadably minute font, this practice definitely is problematic, but not for substantive reasons. Rather, during contract formation, an employer’s practice of using tiny print creates the same potential for surprise as can practices like using baffling legalese, or imposing coercive time pressures, or preventing employees from consulting counsel. All deceptive and coercive procedures by employers can make it more likely employees do not fully understand, or do not understand at all, the arrangement to which they supposedly are assenting. If it is impossible to read, it will be impossible to understand. But once the parties have completed the contracting procedures, whether the substantive result is unconscionable is a conceptually separate question>>.

Si veda alla fine l’Appendix A ove è riportato il documento illegibile (tale è!) e la sua trascrizione.

Questione talora postasi anche da noi.

La distinzione procedural e substantial fairness è da noi infondata: in caso di illegibilità di proposta e/o accettazione non si è formato l’accordo.

Si trattava di lite sulla azionabilità o meno di clausola arbitrale