Just to clarify, Ayn Rand was not a libertarian and did not like being associated with the political philosophy. There are a lot of similarities, of course, but there are also a lot of strands of libertarian thought, most of which wasn't agreeable to Rand. If Rand didn't agree with something, she usually considered it beneath her.
Concerning contracts, different libertarians believe different things. Some may think that the writing in the terms of services are the only thing that matter but another strand of libertarian thought says it's the
intent that matters most. Stephan Kinsella wrote an interesting article on this titled "
The Libertarian View on Fine Print, Shinkwrap, Clickwrap."
Quote:
Many libertarians, often with only a crude understanding of the nature of contracts, just assume, Rand-like, some kind of mystical "power" to "bind" oneself by "a contract". They tend also to equate contracts with a written agreement. They thus tend to think that "if it's written in ink, it's binding, no matter what". To my mind, this is too formalistic. A writing is neither necessary nor sufficient to form a contract. Most contracts are not written. They may be oral. They do not even need to be verbal--I hand you a dollar, pointing to the newspaper; you take my dollar and give me the paper. A sale happens, nonverbally (no oral or written communication). And "what is written" is not necessarily dispositive. To my mind, a written agreement is only evidence of what the parties actually agreed to. But it is rebuttable. The written agreement may be very sparse: in which case in the case of disputes, there is no choice but to resort to "gap-fillers," default rules, and the like. Or the agreement may contain ambiguities or even inconsistencies--this may require similar construction methods, or even invalidation of the agreement.
[...]
So one problem with click-wrap agreements, for example, is that there is (arguably) often no "meeting of the minds" on the fine print--and the vendor is fully aware of this. If the customers routinely just click the "I have read and agree to these terms" box but never do read it, and the vendor knows this, then it's a sort of fiction to assume both sides have actually agreed on these terms. For example supposed buried in fine print for a contract for sale of a $20 software program is the provision, "Buyer agrees to give 50% of his income to Vendor for life." Is this enforceable? Of course not. Why not? Because there was no agreement to this. So the "hidden" terms have to be in some sense reasonable, at the least.
|
I know most people here don't care much about libertarian philosophy but I thought this was relevant. It's almost certainly true that Amazon knows most people don't read its terms and services associated with the Kindle. Can people agree to something if they don't know the terms?