Ways of Solving the Emerging Problem
In the world today, 99% of contracts between two parties are embodied in written standardized
documents (Braun, 2005). For example, upon getting a phone repaired, a receipt which contains the
customer’s name and the price of the service on the front is issued. The back of the receipt
contains various terms and conditions of the servicer that has been offered. When paying for an
airplane ticket after entering the credit card number at the bottom of the form there are standard
term and conditions and two buttons marked “I accept” and “I do not accept” respectively. Most
people click on “I accept” even without reading through the terms and conditions. Often, the
submitting party is placed in an inferior bargaining position which may result in abuse of the
contract terms of the standard form (Braun, 2005). Therefore, measures should be put in place to
protect from unfair treatment that may arise from biased contract terms and considerations to the
broad implications on licenses should generally be made.
Standard form contracts should be thoroughly read before they can be signed. Reading the contract before signing enables one to get advice on the issues that may not be clear before signing. Additionally, the consumer should cross out any blank spaces that they do not fill to prevent the contract from being changed after it has been signed (University of Hartford, 2018). A consumer has the right to negotiate the terms of a standard form contract before signing. After the negotiations are complete, it is required that both parties record in the contract all the changes that have been made to the contract before signing. Finally, one is required to keep a copy of the signed contract in a safe place for future reference (University of Hartford, 2018).
Determination of the scope of application of a standard form contract- Standard form contracts are pre-formulated and can be incorporated into several contracts (Braun, 2005). Governments such as the German government have put in place mechanisms to determine the scope of application of standard form contracts. The contracts are not used in contracts exist in company law, the law of succession and family law. The provisions of the German law allow the standard form contract law to apply to labor contracts given few modifications.
Incorporation control of the contract terms of the standard form contracts applies when it is required that the standard form contract becomes part of a contract as a whole. In the German law, the party that uses the terms has to notify the other party of the application of the standard contract. Moreover the user of the terms has to allow the other party to review the terms and agree that the terms are to apply (Braun, 2005). For instance, terms of a standard form contracts for telecommunications or public transport become part of the contract provided the other party allows them to be applied.
Content control, in some countries, is used by the government to ensure that the terms of the standard form contracts are controlled (Gillette, 2009). Content control is generally used to ensure that the terms of the contact are reasonable and of good faith. Consequences of contract terms that are invalid, illegal, fraudulent and do not fulfill the requirements of good faith are stipulated in the law. Therefore, customers that fail to do initial check in a standard form contract can get support from the law through arbitration.
Implications of the Problem on Licenses
Despite being widely used in modern world, standard form contracts present a significant problem due
to minimal consumer knowledge or enlightenment concerning the implication of terms contained in such
contract forms. For instance, researchers argue that the widespread use of boilerplate contracts
forms has resulted in the increased imposition of contractual liability on the consumers, which has
prompted state laws to be developed to protect the innocent customers who usually sign such forms
with minimal clues regarding their terms and conditions. Moreover, since licensing procedures is now
taking away the democratic rights of the clients signing such forms (Michael, 2012). Consequently,
there are adverse implications of such problem on licenses. For example, in many case, licenses lose
value or meaning in the court of law the implied contract is perceived as unfair and lack of proper
procedures in drafting and implementing them. According to (Becher & Unger-Aviram, 2010), “With
various contracts, the assumption that contracting parties are familiar with their content is often
invalid” (199). Thus, the researcher indicate that “ In the context of consumer standard form
contracts (SFCs), this assumption seems counterintuitive” and often results in unfair documentation
of contracts that constitute unequal bargaining powers, particularly, in terms of legal expertise,
market power or business experience(Guibau &Hugenholtz, 2006).
Furthermore, unfair contract forms often result in the implementation of state laws that protects the consumers from unfair exploitation, especially resulting from signing the “take it or leave it” contracts forms. Studies indicate that in cases standard form of contract agreements, the State is emphasizes more regulating various ways in which the government can intervene and apply public law public law and other fair legislative measures that can be used to solve contractual laws. For instance, the application of judicial processes may make licenses unenforceable. For instance, Eigen (2008) illustrates that in most cases, standard form contract documents do not reveal critical information, such as software license agreements until the buyer signs the standard agreement forms. Similarly, Eigen (2008) asserts further argues that “enforceability of contracts is at least, in part, a reflection of belief in the state‘s ability to enforce law generally” (13). Thus, in such cases, unclear contracts cannot be enforced, even in the the court of laws, since the common law dictates that contract terms must be disclosed, read and understood by both parties before executing the contract affecting licenses negatively. This is because, software license agreements that are not visible to users and the issuer tends to take zero liability in the event of software damage or harm to user.
References Becher, S.I, Unger-Aviram, E.(2010). The Law of Standard Form Contracts: Misguided Intuitions and Suggestions for Reconstruction, DePaul Business and Commercial Law Journal, 10(3), 199-227. https://pdfs.semanticscholar.org/d63a/dd334aff360a5f98985f81546a021df8fbc8.pdf Braun, J. H. (2005). Policing standard form contracts in Germany and South Africa: A comparison (Master's thesis, University of Cape Town, Cape Town, South Africa). Retrieved from https://open.uct.ac.za/bitstream/handle/11427/4670/thesis_law_braunj_2005.pdf?sequence=1 Gillette, C. P. (2009). Standard form contracts (181). Retrieved from New York University School of Law website: https://lsr.nellco.org/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1185&context=nyu_lewp University of Hartford. (2018). Signing contracts. Retrieved from https://www.hartford.edu/international-center/international_student_services/living_in_usa/signing_contracts.aspx Eigen, Z.J (2008). The Devil in the Details: The Interrelationship Among Citizenship, Rule of Law and Form-Adhesive Contracts (March 12, 2008). Connecticut Law Review, 41(2), December 2008; 3rd Annual Conference on Empirical Legal Studies Papers. Available at SSRN: https://ssrn.com/abstract=1105424 Michael, W.S.(2012). The Problem of Standard Form Contracts, Review Article: A Retreat to Formalism Bus. L.J. 475-486. Retrieved from https://ssrn.com/abstract=2603404 Guibau.L. and P.B. Hugenholtz (2006)(eds). The Future of the Public Domain, 87–104, Kluwer Law International, Netherlands. https://www.ivir.nl/publicaties/download/wrapping_information_in_contract.pdf