The Devil is in the Detail

April 19, 2010

I may be late to the party in noticing {this delightful story:} on the wonderful Outlaw site. In summary, 7,500 people buying from the Gamestation web site on 1 April agreed to terms and conditions that involved them in surrendering their immortal soul.

It is a brilliant joke – but I am not sure who the main victim is. Is it the poor consumer who is now condemned to hell or the software company that paid its lawyers to draft terms which, it seems, could have said anything.

The answer is that nobody looks at these terms and conditions {i}until{/i} the ash hits 18,000 feet. But then they do look and, in some jurisdictions at least, you have to draft with UCTA and various Directives in mind. The very fact that there is so little reference to online terms and conditions means that feedback is limited and makes it trickier for the skilled IT lawyer, raised in a culture of hard-nosed negotiation, to pitch them at the right level. At least that is my suggestion for the line you might take if a client queries your bill on the basis that (a) you have brought it no immortal souls and (b) any old rubbish would have done for the site terms and conditions.

I am always wary about expressing an opinion on terms and conditions in light of some recent Court of Appeal rulings and without a full examination of the factual matrix involved, but I am reasonably confident that any claim to a soul would be struck down. These days you would be lucky to get a bloodless pound of flesh. Political correctness gone mad.