This discussion board is open for any questions or comments in a new thread, but please address the following:
1. After reading about shrink wrap and click wrap agreements, do you think they should be enforced or not? If these types of agreements are unfair to consumers, what is the alternative? Do people actually read software agreements? Do you have a credit card or cell phone or bank account? Have you read the terms of service and other contracts associated with those products and services? Have you ever negotiated any terms in those contracts? What practical difference does it make whether or not click wrap agreements are allowed if nobody reads the contracts anyway?
2. In light of the way that we treat 17-year-olds in many criminal cases (trying them as adults), and how many contracts (cell phone, credit card, online shopping, tuition, etc.) 17-year-olds may regularly deal with, should we continue to recognize the right of a 17-year-old to unilaterally void a contract? What public policy (if any) is this serving?
3. In light of the book material on mental capacity to form contracts, how can you safely contract with a person suffering from a mental condition like Alzheimer’s disease? The cases where a lack of capacity defense is used typically focus on the subjective details of the defendant’s condition, as evidenced by medical records and testimony from witnesses and doctors. How can a business person be expected to know that information in advance when forming a contract? If you run a nursing home and you frequently contract with elderly individuals, many of whom may be senile or suffer from Alzheimer’s disease or other conditions involving some degree of dementia, how can you be sure that your customers have the mental capacity to sign your contracts? Many dementia patients have periods of lucidity, during which it is practically impossible for a stranger to determine that there may be a mental capacity issue. Does the law protect the expectations of nursing home owners who reasonably thought their residents had the capacity to contract? Should it?
4. Should courts ever enforce illegal contracts? If illegal contracts are void as a matter of law, what is the court enforcing? If courts will use equity powers or other roundabout ways to enforce illegal contracts, what is the point of making those contracts illegal in the first place? If a judge allows a plaintiff to recover under an illegal contract, what public policy is being served?
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