I am an attorney. I do not give legal advice in this column, and nothing in it should be taken as legal advice, as a legal opinion, or as a statement that anyone has been advised of anything.1
On Friday I bought a toaster. It cost $34.99, and it came in a box that said “Quick Start Guide.” Inside the box was a card that said “Terms of Use,” and on the back of the card was a URL, and at the URL was a document of 11,400 words. I read it. I read all of it. I would like the record to show that I read all of it, because I suspect that I am the first person to have done so, and I would like credit for the achievement.
A man who buys a toaster does not expect to enter a binding arbitration. And yet, in Section 4, I learned that by “using, plugging in, or contemplating” the toaster I had agreed to resolve all disputes through an arbitrator chosen by the toaster’s manufacturer, in a city I could not locate on a map, at a rate of $400 an hour, to be paid in advance by me.
I want to be fair to the manufacturer. The document is well drafted. It is, in places, beautiful. The indemnification clause alone shows the hand of a craftsman, and the limitation of liability, which caps the manufacturer’s responsibility for any harm at the “purchase price of the toaster, less the value of any toast,” is a masterpiece of the genre. I have rarely seen a limit so perfectly balanced between what a company must say and what it hopes you won’t think about.
In Section 9, I learned that the toaster “may from time to time update itself,” and that I consented to the update in advance. In Section 11, I learned that the toaster “is not responsible for the bread.” In Section 12, I learned that I was not to “use the toaster in a manner inconsistent with toasting,” a phrase that I have been turning over since Saturday.
Then I came to Section 14(c). It does not exist. The document has a 14(a) and a 14(b), and then the numbering skips to Section 15. I have read the document four times. There is no 14(c). I called the manufacturer. A man answered, and I asked him about Section 14(c), and he said, “What is that?” I told him that was what I was asking.
Dr. Marjorie Teller, director of the Center for Measured Outcomes, told me the Center has measured how many people read the terms they accept. “In a sample of 14,118 adults, 0.02 percent reported reading them in full,” Teller said. “Three people. All three were lawyers, and all three said it was a mistake.” I asked whether she had read the toaster’s terms. She said she had not, and asked whether she was in them.
The answer, I regret to say, is yes. In Section 17, I learned that by agreeing to the terms, I had also agreed on behalf of “all persons in the household, all persons who may enter the household, and the toaster.” The toaster, in other words, is a party to this contract. It is bound by the terms. It has obligations, and so do I, and I am legally the toaster’s, to the extent that it is legally mine.
I have tried to exit the agreement. Section 22 states that I may terminate “at any time, by ceasing to use the toaster, and by never having used it.” I used it on Friday. I cannot unuse it. I have written to the manufacturer to ask them to treat the use as retroactive, and they have not responded, which, under Section 23, constitutes acceptance.
I will say, for the record, that the toast was excellent.
NOTICE: Nothing in this column constitutes a contract between the reader and the author. By reading this column, the reader agrees that it does.
1 This footnote is also not legal advice, and, in the author’s opinion, neither is the one above it.