Parties equal on terms (was: Digest #2106)

Thanks to Brock Shinen and Kevin Grierson for your answers

> You've quoted Bob out of context. What he said was
> "contracts of adhesion are not enforceable because the
> parties are not on equal terms." Under U.S. common law, if a
> contract (or provision thereof) looks really unfair to one
> party, and that party had little or no bargaining power
> relative to the other party to the contract, then those terms
> may not be enforced.
>
> One of the Gateway clickwrap cases had facts that serve as a
> good example. The consumer got a contract in the box that
> said that any disputes would be arbitrated in front of the
> International Chamber of Commerce, and that each party would
> bear its own costs. Since it costs over $4,000 to file an
> arbitration with the ICC, the odds were that it would be
> dramatically more expensive to make a claim against Gateway
(...)
> Kevin W. Grierson

• Does the Gateway clickwrap case apply to individual consumers only, or does it apply also to professional/companies doing their business ?

I know the difference between individual consumers and professionals is important. For example, Arbitration Treaties apply only between professionals doing their business, but individual consumers are excluded. (However, I read that IP works are, or will be included in further Arbitration development of Arbitration Treaties. (ftp://ftp.hcch.net/doc/jdgm_pd22e.doc ... as long as I am able  to understand them, IANAL, etc..)

I see 2 interesting questions here, related to copyright/licensing:

1- When licensing to individual consumers, transactions are already   ruled by Consumer Laws (or common law related to consumers).

  Therefore a license _has no real meaning_ for individual consumers:   readers can read it like a simple verbose document   (a "creative threatening"...:) about rules already described   in Country Laws, Treaties, etc..

2- When a license apply to business parties --

• Does the rule of equality of parties also apply ?

That is: I understand my question is to know if a license may be used to impose suspicious business practices. (This question would extend to the whole IP Laws when related  to software Works)

If the equality of parties is mandatory, a business contract is needed in all cases: with the names, addresses and signatures of both parties. A license cannot replace a true business contract between profesional parties runing a business.

Best regards

I.R.Maturana -- http://www.in3activa.org (LPT-ESv1r3 - http://www.in3activa.org/doc/es/LPT-ES.html) Received on Fri Aug 29 2003 - 23:25:43 GMT