I’ve been reading and thinking a lot lately about website terms of service. There’s something unsavory to me about having a contract formed between a website owner and its users by posting complicated legalese on the site and pretending the users read them.

It’s the “pretending the users read them” part that bothers me. Everybody knows consumers don’t read these complicated–and oft-changing–legal documents, yet they form the contract between website and consumer. As Coco Soodek, BigLaw partner and author of the book Birth to Buyout, wrote in a recent post on her Profit and Laws blog, “businesses that pose these contracts have to pretend that they don’t know that you know that they know that you aren’t going to read the contract.” [continue reading…]

Article 2 of the Uniform Commercial Code governs the sale of goods. Whether software is a good is a thorny question, and a lot of variables affect the answer. In this excellent Law Technology News post, Richard Raysman and Peter Brown, of Holland & Knight and Baker & Hostetler respectively, summarize the issues and eloquently provide the obvious lawyerly answer: it depends.

The Weitz Co. v. MH Washington, LLC

MacKenzie House, LLC, the developer of the 46^th and Washington Townhomes in Kansas City, Missouri, hired The Weitz Company as general contractor. The project was fraught with difficulties, and Weitz sued MacKenzie, MH Washington, LLC (an entity of which MacKenzie was the managing member), and Summit Steel Fabricators, Inc. (a subcontractor hired by Weitz at the behest of MacKenzie) for breach of contract.

The jury returned verdicts for Weitz against MacKenzie, MH Washington, and Summit Steel, and also found for MacKenzie and MH Washington on their breach of contract counterclaims against Weitz. [continue reading…]

theContractsGuy is a new blog and I’m still finding my voice. So far I’ve pretty much kept to the topic of contracts and the process of contracting. But those who follow my Twitter feed, Facebook page, and LinkedIn updates know that I’m also interested in other areas of business law, legal services technology, the changes the legal profession is undergoing, and law firm business models. (I’m also interested in Latin, but I don’t tweet about that very often.)

I’ve often been tempted to cover those topics here, but, other than this brief description of an area in the nether regions of the blog where I’ve posted links to interesting discussions about law firm business models, I’ve resisted the urge. That might change, but not today. [continue reading…]

I’ve long been bothered by the fact that online terms of use are seldom read and rarely understood. Finally, a solution has presented itself in the form of a dramatic reading by Richard Dreyfuss presented by CNET. The termination provision is especially lively.

Cheers to Mike Wokash, aka @MadisonIP, for the link.

Every once in a while I read a court’s opinion and want to know the back story. That’s how I feel about last month’s Seventh Circuit decision in Digitech Computer v. Trans-Care.

Here’s a short version of the business story from the Southern District of Indiana’s three separate opinions and the Seventh Circuit’s opinion. Trans-Care personnel met representatives of Digitech at a trade show. Wanting to win Trans-Care’s business away from a competitor, Digitech later persuaded Trans-Care to negotiate for the purchase of Digitech’s software by offering a 90-day “satisfaction guarantee,” which was unusual for the software company. [continue reading…]

If you’ve ever negotiated a contract, you know what I’m talking about. Most of the important deal terms have been agreed to. Both parties—as well as their lawyers—are eager to wrap up negotiations. But there’s a sticking point that won’t be a big deal until months, or even years, down the road. So why not put off making a tough call and agree to make the decision later?

Denil v. deBoer, Inc.

The U.S. Seventh Circuit Court of Appeals decided a case earlier this month where the parties decided to put off making difficult choices in contract negotiations. [continue reading…]

South Park has never sustained my interest, but this clip, which I discovered on mashable.com, is downright funny. In the clip the green-capped character (Kyle, according to chacha.com) finds that he agreed to much more than he bargained for when he clicked on the iTunes terms.

Are contracts made via email enforceable? You betcha—although not in all cases.

In this recent post I highlighted a case where a written contract was modified by a pithy instant message exchange, and in this post I discussed a case where a court enforced “browsewrap” terms of use for a free website where the user had not read the terms. Today I’ll discuss a cyberspace contracting case where an email exchange formed a binding contract. [continue reading…]