I woke up this morning, repeatedly berated by family. As I am a natural a-hole, my brain came up with a thought. This thought later became an intelligent question. We have all seen ToS that are something to the effect of: By clicking next you agree to these terms and conditions. If they aren't going away, then companies must think they are worth time putting in installers, websites, etc. So I want to know if these two contracts would hold equal legal weight: 1st is the "clicking next" contract: By clicking next you agree to these terms and conditions. I) I consent to my person being harmed II) I consent to giving you all of my property III) I consent to giving you a service fee on [stuff happening] outside this program IV) I consent to a penalty for doing [stuff happening] outside this program 2nd is the hypothetical "entering this door" contract By entering this door you agree to these terms and conditions. I) I consent to my person being harmed II) I consent to giving you all of my property III) I consent to paying you a service fee on [stuff happening] outside this door IV) I consent to a penalty for doing [stuff happening] outside this door I personally think that these two probably hold equal legal weight. I also think that neither should be in practice.
Disclaimer, this is not legal advice, yadda yadda. 0. EULAs have not had a healthy list of precedents set because they are rarely challenged. EULAs in general contain many clauses which would not be enforced if they were challenged. 0.5 All of the clauses you've cited generally speaking fall under the grouping of contract law, and what can be construed as forming a contract and what kind of contract clauses are enforceable. 1 your clause about 'my person being harmed' is not an enforceable contract clause. "harm" means something you do not want. You cannot contract to have some unspecified thing you do not want done. You must specify what is the thing to be done, and it is then assumed because you are contracting for it, that you want it. You cannot legally form contract to have a crime performed. 2 your II clause is probably legal in that it is not peremptorily impossible to form a contract on that basis. Contracts written in this way when challenged will likely come up against Consideration tests- as in did you stand to receive anything of remotely equivalent value to 'all my property'. Game EULAs will fail that test and your acceptance of the contract will likely be deemed suspect. 3 These clauses will fail contractual capacity. I cannot require that you be obligable to actions not provided by the promisee. In other words I can only require you to pay me for stuff I caused to happen after promising you I would cause it to happen. I cannot require you to pay me whenever a specified action occurs which I in no way brought about. 4 This one is a rephrased combination of 2 and 3. You have the legal right to give me permission to charge you $5 every time you smoke a cigarette, for example. You are a promisor in the contract, and it is your actions which trigger the penalty. If you do not have standing to receive some benefit which is remotely equivalent to your estimated liability, courts will likely assume I pulled a fast one and got your contractual agreement in a non-enforceable way. This one is the one most likely to be enforced out of the four, however.
