contract-law adhesion-contracts
Is it against a Terms of Service/End-User License Agreement to not read it?
<p>In many Terms of Service/End-User License Agreements, there is a statement either as art of the confirmation check box to agree to said agreement and/or as a part of the agreement itself that says something along the lines of "Please read this agreement in its entirety, by agreeing to this agreement/checking this box, you are acknowledging that you have read, understand, and agree to all terms/linked terms/linked agreements/etc."</p>

<p>What I'm wanting to know is if by not fully reading and understanding these agreements, am I in violation of these terms and the agreement?</p>

<h2>You have read it: legally</h2>

<p>It doesn’t matter if you haven’t read it in fact. At law, you have. Therefore you cannot avoid obligations or consequences by saying “ I didn’t read it”.</p>

<p>It’s an extension of the common law principle that if you affix your ‘mark’ to a document you were acknowledging that you understood it and would abide by it: even if your mark was an X because you were illiterate.</p>

<p>There are protections. At common law an <a href="https://en.m.wikipedia.org/wiki/Unconscionability" rel="noreferrer">unconscionable</a> term is unenforceable and may void the contract entirely. Additionally, many jurisdictions have passed legislation to make unfair contract terms unenforceable, particularly in <a href="https://en.wikipedia.org/wiki/Standard_form_contract#Contracts_of_adhesion" rel="noreferrer">contracts of adhesion</a>. Further, consumer protection laws often have non-excludable warranties that operate in spite of the contract.</p>

<p>The only consequence of not reading and understanding the TOS, or any contract, is that you might unintentionally violate that contract, because you did not understand what the contract requires you to do. Or, the other party might act in a legal way that you (wrongly) thought was not possible under the contract. For example, a TOS may say that you can't copy material from the web page. What is illegal is copying material from the web page, so if you don't do that, then you're okay. You might happen to know independently (from copyright law) that you can't copy stuff from a web page.</p>

<p>Clicking "I have read and I agree" when you know that statement to be false might very hypothetically be fraud, in that you are making a false statement that might be material to the other party's allowing you access to the material. The problem would be them showing that it is actually material to their side of the bargain that you both read and understood, plus, the other side could not prove that you did not read – the corollary claim about understanding is too subjective to be the subject of litigation.You might get some traction on Philosophy SE with the ethical question of whether it's morally proper to agree without understanding. It is perfectly legal, but risky.</p>

<blockquote>
  <p>by not fully reading and understanding these agreements, am I in violation of these terms and the agreement?</p>
</blockquote>

<p>No. A contract is an exchange of considerations (aka benefits). The sole act of reading the terms of an agreement gives no benefit to the counterparty, whence reading and understanding them is not part of the actual contract. Consequently, not reading or not understanding the contract cannot constitute a violation thereof.</p>

<p>The relevance of reading and understanding the terms of a contract pertains to proving the <em>formation</em> of a contract, and more specifically the contract-law tenet that agreements be entered <em>knowingly and willfully</em>. Thus, your signal of having read and understood the contract (for instance, by clicking on a checkbox) serves as your counterparty's evidence of your full awareness of what the contract between you two entails.</p>

<blockquote>
  <p><a href="https://law.stackexchange.com/revisions/46108/1">am I ethically in the wrong?</a></p>
</blockquote>

<p>In most cases, no, you would not be <em>ethically</em> in the wrong. The fact that generally speaking it is not <em>unethical</em> does not render your question "off topic", though.</p>

<p>(I am sorry for some users' arrogant habit of suppressing parts of others' posts. Unfortunately some people pretend that ethics has nothing to do with law. If it were off-topic in law, <em>ethics</em> as a keyword would not yield the <a href="http://www.leagle.com/leaglesearch?all=ethics" rel="nofollow noreferrer">thousands of results</a> when searching court opinions, nor would there be an entry therefor in legal dictionaries such as Black's Law Dictionary.)</p>

<p>As explained above, your manifestation of having read the agreement serves a purely evidentiary purpose as to <em>formation</em> of a contract. That evidence might be brought up in the event that either party attempts to void the contract or that the counterparty goes after you for breach of contract.</p>

<p>Falsely purporting your awareness of the terms of a contract might lead to legal problems only in very few, unusual scenarios involving mental states such as negligence. Even if the false portrayal does not amount to breach of contract or a violation of laws, a court might rule <em>in equity</em> when the party's omission and misrepresentations thereof causes injuries to a party to the contract or to third parties.</p>
