NOPE, sorry, but, most stores do not allow the return of software, where in your example, i have already purchased the software, and agreed to the terms and conditions on the back of that receipt you metnioned, (which, of course, i only get the receipt AFTER i complete the transaction, at which point in my opinion, that contract was imposed on me, but thats beside this point) then got home, then opened the software, where it says, """If > >you do not agree with this license, click EXIT below and return the > >software". at this point my option of opting out, has already been denied, since i cannot return the software to the place of purchase. i'm stuck with it, and since i cannot return the software, and was FORCED to keep it, that must in turn mean that i have agreed to the conditions of the contract, which i did not, or rather was forced to agree by not having the option available to me to return the software.
on your note #3 of Contractual Capacity, that would imply that when any software is purchased by a minor there is no contract, since a minor cannot legally enter into ANY contract by law, so as far as THAT law is concerned it simply means to me, that anyone under the age of 18 can legally have a software piracy operation, sonce of cpourse, they never agreed to that contract, or better yet, they can buy the software at whatver store, tehn GIVE the software to me, which of course, I am not bound to any of the original conditions, and the original intent of the contract was to the buyer in this case. hmm, see where i'm going here, it seems to me, some of those laws need to be reviewed/rewritten. Don > >-----Original Message----- > >From: Burton M. Strauss III [mailto:[EMAIL PROTECTED]] > >Sent: Wednesday, June 26, 2002 7:52 AM > >To: [EMAIL PROTECTED] > >Cc: [EMAIL PROTECTED]; Cameron Turner; Mark Medici > >Subject: RE: Auto Complete Password Caching > > > > > >"reasonably equal ability" doesn't mean ability to modify the > >terms of the > >deal ... What I learned in B-school Biz Law was "ability to > >contract". And > >that is VERY different. Your ability to modify may be voting with your > >feet, but unless you are buying air to breath on the space > >station, that's > >considered sufficient. Even if every vendor has the same onerous terms, > >that's Anti-trust, not contract law. > > > >IIRC, the essence of the legal decisions upholding the EULA turn on one > >point - the ability to view the license BEFORE making an irrevocable > >decision. > > > >If software came with a license you couldn't view and no return policy, > >that's probably unenforceable. But the typical "out" is > >something like "If > >you do not agree with this license, click EXIT below and return the > >software". You see the license and have the ability to opt in/out - and > >that's the point where a contract is established. > > > >It's really the same thing at the big-box retailer or when you open a > >brokerage account - there is a contract there. One you > >explicitly sign or > >walk. The other? You agree implicitly by completing the transaction - > >which implies consent to the store's posted policies and the ones on the > >back of the receipt. Both are legally enforceable. > > > >Quoting from the textbook (West's Business Law - Alt UCC Edition > >- 1981), pg > >59/60: > > > >"The Elements of a Contract" > > > >"1. Agreement: An agreement includes an offer and an acceptance. A party > >must offer to enter into a legal agreement, and another party > >must assent to > >the terms of the offer > > > > 2. Consideration: Any promises made by the parties must be supported by > >legally sufficient consideration - something of legal value. > > > > 3. Contractual capacity: Both parties entering into the > >contract must have > >the contractual capacity to do so; they must be recognized by > >contract law > >to possess characteristics qualifying them as competent parties. > > > > 4. Legality: The contract must be made to accomplish some goal that is > >legal. > > > > 5. Reality of assent: Apparent consent of both of the parties must be > >genuine. > > > > 6. Form: The contract must be in whatever form the law requires." > > > >Attacks on the EULAs go after #s 4 and 5 (click to agree). > >Quoting again: > >"For example, illegal bargains, agreements in restraint of trade and > >'adhesion contracts' made by parties who have inordinate amounts of > >bargaining power are not enforced." and "Adhesion contracts > >arise when one > >party forces the other party to adhere to dictated terms or go > >without the > >commodity or service in question." (page 121). However, you have to > >remember that courts are reluctant to insert their judgment and > >if you can > >show alternatives, then it's not "go without". > > > >So, I guess in summary... > > > >I don't think the FAX/Email disclaimer are worth the bits they > >consume, and > >EULAs probably are contracts. But what do I know - free legal > >advise from a > >non-lawyer is maybe worth what you paid for it, never more. > > > >-----Burton > > > >-----Original Message----- > >From: Mark Medici [mailto:[EMAIL PROTECTED]] > >Sent: Wednesday, June 26, 2002 9:12 AM > >To: Burton M. Strauss III; [EMAIL PROTECTED] > >Cc: [EMAIL PROTECTED]; Cameron Turner > >Subject: RE: Auto Complete Password Caching > > > > > >Burton wrote: > > > >> I can't imagine that these disclaimers would hold up. At best, these > >> disclaimers seem to be an offer, in the contract law sense. > >> But the essence > >> of contract law is two (or more) parties of reasonably equal > >> ability to > >> contract and an agreement (with evidence, such as action > >> according to the > >> contract or signatures). > > > >What about Software Licenses? Does the licensee have a "reasonably equal > >ability" to modify the terms of the contract? No, it's a "take > >it or leave > >it" situation. Perhaps the same logic applies to the disclaimer: If you > >don't agree, send-back or delete the email. > > > >Personally, I think you're right and that these disclaimers are > >just silly > >(bordering on arrogant) and unenforceable. But I feel the same > >about most > >software licenses, and somehow they manage to persist. > > > >
