Is it legal to make a contract intentionally confusing? Suppose a company drafts a user agreement that is intentionally hard to understand in order to confuse its customers. Maybe it's needlessly long and wordy, maybe it unnecessarily cross-references various other documents, maybe it has a section in Swahili, who knows. Is there any point where this could make the contract unenforceable? Many people will just click &quot;Accept&quot; on literally anything, and some customers would inevitably accept the agreement in spite of its problems. Assume for the sake of argument that, although the contract is confusing, it is unambiguous, and its terms (though unfavorable) would be legal and enforceable if it were written in plain English. Would a contract like that be valid?
Simply being confusing is not enough to make a contract unenforceable. The law generally operates on the premise that people can understand statutes, regulations and contracts, and that if they don't understand a contract, they won't agree to it. Therefore, if they agreed, they understood: this is a fundamental premise of contract law. However, there are a couple of loopholes, &quot;unconscionability&quot; and &quot;public policy&quot;, which could provide an escape. In the proposed scenario, we would assume that there is a huge difference in bargaining power between the customer and company, that some term is unfair (a highly subjective matter reduced to expressions like &quot;shocks the conscience&quot;), and the language of the contract is clearly confusing. &quot;Public policy&quot; generally involves a requirement in a contract that is statutorily prohibited: either the required action is itself illegal, or the law has banned any such clauses in a contract (very commonly, residential leases are statutorily prohibited from including clauses waiving statutory protections of rights). I think that if a contract for some internet thing (e.g. an ISP) had a clause that &quot;unahitaji kukulipa $1 kwa kila siku unayotumia huduma zetu&quot; (you must pay $1 for every day you use the service) that this is not a shocking price, so the contract would be enforceable, even if it ought to be a bit confusing.
Contracts are subordinate to the law Any clause in a contract that is unlawful is void. So, if the law compels you to disclose information then even if a contract prohibits it, disclosure is not a breach. However, in most circumstances, law enforcement officers have no power to compel disclosure - you have a right to remain silent. As such disclosure when it was requested but not required would be an actionable breach of contract. On the other hand, a judge can most certainly compel disclosure.
If the agreement is the result of a binding determinative process like the decision of a court, arbitrator or administrative tribunal, the aggrieved party can go to the court for enforcement. If it isn’t, then the agreement may be enforceable as a contract (see What is a contract and what is required for them to be valid?). Breach of the contract allows the aggrieved party all the normal remedies. In either case, breach by one party does not excuse breach by the other. Of course, the agreement can be worded “you do this then I do that” so if you don’t do this, you are in breach but I’m not. If it isn’t either of the above, it can’t be enforced.
One of the key fundamentals for the formation of a contract is that the parties demonstrate their intention to be legally bound. There are two ways that websites usually use to show that intent by their users: click wrap and browse wrap. With click wrap terms the user explicitly agrees to the terms and creates a binding contract by ticking a box or pressing a button. As far as I am aware there has never been a case where a user has been successful in claiming there was not a contract. With browse wrap terms: For assent to occur the browse-wrap agreement should be conspicuous, state that there is an agreement, and provide where it can be located. it is certainly arguable (IMO with a good chance of success) that the stack exchange browse wrap, with its tiny link embedded among many others at the bottom of the page, is unenforceable. For the circumstances you describe the site tried for a click wrap but due to technical difficulties got a browse wrap. If it can be demonstrated that the user saw the terms or a prominent link to them and continued this would probably be enforceable. Licenses: if the terms contain the grant of a copyright licence then that can be enforced because copyright exists even if a contract doesn't.
As a buyer, you can write anything you want (aside from anything illegal) into a contract, i.e. to withhold the last payment on a item until you check off the final product specs, but that won't make a difference unless the manufacturer agrees to the contract. A contract that is agreed to (written and agreed to (typically signed), or verbal and verbally agreed to) is legally binding; a contract not agreed to is little more than a wishlist. If this involves, as you say, online purchases or when the customer is remote and working through an agent, a contract can still legally binding, but the contract may be more complex. You may need to draft more stipulations into the contract with all involved, (agent and manufacturer); but again, those mean nothing if the contract is not agreed to. See Contracts - Legal Information Institute for an outline of the steps of making a contract: An agreement between private parties creating mutual obligations enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality. The enforcement of breaking a contract is a completely different situation. You may draft arbitration arbitration (Legal Information Institute) into the contract; or may go to civil court.
Your confusion might be caused by the fact that even with a contract, only the data necessary for that contract is covered under the GDPR. So yes, while there might be an &quot;execution of contract&quot; under the T&amp;C, this would only cover necessary data. That means you can't ask arbitrary signup data under the guise of a contract. If you need to deliver a physical product, you can store a physical address. If it's an online service, you can store an email address or similar handle. But you can't mix the two. A physical address is unnecessary for the execution of a contract that's not physical in nature. Now, you mention &quot;consent&quot;. Under GDPR, this is a distinct justification besides &quot;execution of contract&quot;. You might have consent to store a physical address in addition to an online address, e.g. if you offer a customer to physically mail a password request form. This consent is additional to the contract. Also note that the bit above only covers the lawful reasons for the processing of personal data (article 6). You also have to obey the other GDPR rules, e.g. fully inform the user, make sure that consent is freely given, etc.
You can have agreements that are not contracts As such, there are not legally enforceable as contracts but may be enforceable under non-contract law. Examples of such non-contractual agreements include social agreements, statutory duties, memorandums of understanding, agreements to distribute cocaine etc. However, that’s not what you have here “No contract” agreements for things like internet or phone services are contracts - the “no contract” terminology is advertising fluff to indicate that the contracts are one-off or short term and don’t lock the customer into a long-term contract. The term “contract” is being used in a generally understood way as meaning a long-term binding commitment not in a strict legal way where virtually every commercial transaction is a contract
In general, &quot;making a reservation&quot; does not create a contract, except when it is obvious that you have a contractual agreement. That would be the case with an airline reservation, and one clear sign is that you have to pay for the ticket when you make the reservation; or, it you don't, then there is no contract, and they can cancel or change the price. You would look for clear signs of an agreement, such as a &quot;agree to terms&quot; button that you have to click. Paying a deposit is another clear sign. Then you would simply look at the terms of the contract to see what their obligation is, and what yours is. They may have strongly committed to providing service in which case you might have a cause for legal action if they break that commitment, or they might have made no specific promises about service in case of intervening events (such as if the chef has a heart attack, or the power goes out). If we do think of this as a contractual matter, you breached your duty as a customer, to be there by 7:30, so even if there is a contract, they didn't break it. The note that you added renegotiating the arrival time was insufficient – it is outside of the contract, and possibly something that they didn't see (they only look at the names and official time blocks reported by the web page). In lieu of a contract, there could be some statutory obligation, i.e. a specific regulation in Sweden saying &quot;if a restaurant accepts a reservation, they absolutely must hold the space available for the entire reserved time&quot;, which is an unreasonably onerous business practice that no nation requires.