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What's Irrevocable Anyway?
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<blockquote data-quote="Snarf Zagyg" data-source="post: 8925294" data-attributes="member: 7023840"><p>This is ... something. If people take only one thing from this, I hope that it is that issues are complicated- and that if you've heard someone say, "I know that a Court would decide X on the OGL because of REASONS," you should take that assertion not with a grain, but with a pound of salt.</p><p></p><p>That said, a few brief corrections-</p><p><em>1. It often comes up in licenses like creative commons as a way to establish that the intent of the agreement is for it to last for an infinite amount of time, and for the regular course of business should not result in any changes to this.</em></p><p></p><p>No. Irrevocable isn't about the <em>term</em> (duration) of the license, it's about the ability of the offeror (licensor) to revoke the offer during the term. This is an important distinction.</p><p></p><p><em>2. Further, there are times when the courts will step in to address power imbalances and other problems in a contract. Sometimes, saying “‘it’s unfair’ can move judges to act,” says Literovich. A common circumstance when the court will intervene is when one party lacks capacity, the legal term for whether a person is capable of understanding and agreeing to a contract. A court would probably step in and point out a newborn isn’t really capable of agreeing to anything, as an extreme.</em></p><p></p><p>Two different things are being confused here- "unfair" contracts (such as some contracts of adhesion) are one issue; for various reasons, courts in the United States generally no longer are too concerned about mere <em>unfairness. </em>The term is unconscionability, and that's a really tough argument in the US since, oh, the 80s. Yeah- the 80s. But that's not the same as "capacity," which is the ability of a party to form the contract.</p></blockquote><p></p>
[QUOTE="Snarf Zagyg, post: 8925294, member: 7023840"] This is ... something. If people take only one thing from this, I hope that it is that issues are complicated- and that if you've heard someone say, "I know that a Court would decide X on the OGL because of REASONS," you should take that assertion not with a grain, but with a pound of salt. That said, a few brief corrections- [I]1. It often comes up in licenses like creative commons as a way to establish that the intent of the agreement is for it to last for an infinite amount of time, and for the regular course of business should not result in any changes to this.[/I] No. Irrevocable isn't about the [I]term[/I] (duration) of the license, it's about the ability of the offeror (licensor) to revoke the offer during the term. This is an important distinction. [I]2. Further, there are times when the courts will step in to address power imbalances and other problems in a contract. Sometimes, saying “‘it’s unfair’ can move judges to act,” says Literovich. A common circumstance when the court will intervene is when one party lacks capacity, the legal term for whether a person is capable of understanding and agreeing to a contract. A court would probably step in and point out a newborn isn’t really capable of agreeing to anything, as an extreme.[/I] Two different things are being confused here- "unfair" contracts (such as some contracts of adhesion) are one issue; for various reasons, courts in the United States generally no longer are too concerned about mere [I]unfairness. [/I]The term is unconscionability, and that's a really tough argument in the US since, oh, the 80s. Yeah- the 80s. But that's not the same as "capacity," which is the ability of a party to form the contract. [/QUOTE]
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