Principles to resolve ambiguity in a contract The problem of ambiguities in a contract is so old that there must be general principles to resolve them. What are the main such principles, and how are they named (in Latin, English, or French)? I vaguely remember that who wrote the contract bears the consequences of an ambiguity, to some degree. But I lack a name for that. Also is there some rule that early clauses beat later ones, unless the later explicitly is an exception to the former? I'm a party in a French contract, with disputes to be brought to a designated &quot;Tribunal de Commerce&quot;, so it matters if the principle is recognized there. If I can be that specific: the conflict is between a first clause defining how electricity pricing evolves until some specifically laid out condition is met (which is not met), and a later clause allowing change of pricing method by the supplier with a one month notice. Also, clauses governing the termination of contract are asymmetrical, with the supplier explicitly having limited termination rights (basically, fault of the customer), which in my opinion makes unlimited change of pricing method too easy an escape for the supplier. I could link to the contract (which is public), but it's in French, and I fear this is way off-topic.
Here is a substantial collection of interpretive canons; this article discusses rules vs. canons. This article discusses contract interpretation from both the perspectives of drafting and litigating. These are all from the perspective of common law systems. This article (in English) and this chapter (English, paywall) reminds us that French contract law is different, to which I would add this which focuses on the French subjective theory of contracts – starkly distinct from the common law theory. This page (en français) will probably be of most interest to you. The 2016 modification to the civil code added art. 1190 (and other articles) which says Dans le doute, le contrat de gré à gré s'interprète contre le créancier et en faveur du débiteur, et le contrat d'adhésion contre celui qui l'a proposé which is contra proferentem. The Latin name is not officially assigned to this law, and being a new addition to French law, it's too early to tell if it will be so named in French legal practice.
No Contracts are not bound by due process. Due process is a rule of how a lawsuit has to be handled, not how a contract is to be handled. All the Due Process clauses in the US constitution simply don't apply. The only things that apply are the contract language, and the underlying/overwriting laws. If your contract stipulates that it is terminated by winning a coin flip against the other party, that's fine. If it stipulates, that you have to find 15 people supporting you in terminating the contract, that's fine. If it states that the other party can terminate for any and all reasons, including no reason, that's what the contract says, and fine. The contract would have to establish that you actually have a process, and how it is handled. My hypothesis is that these common practices combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform[...] This part is correct. They have the complete impunity because of how the contract is written. However, that does not make the contract illusory: you can decide not to agree to it and not go to the place, so it is mutual acceptance. Both sides are bound to perform something until the contract is terminated. An illusory contract would be that Alice gets 2000 USD for nothing (only one side performs). But both sides perform. The contract is to follow the TOS in exchange for site access. Both sides offer something: access in exchange for adherence to rules. The claim of non-mutuality is frivolous: If you claim &quot;I don't agree to the TOS and contract&quot;, you can't at the same time get the benefits of the contract either: you signed the contract to follow the TOS in exchange to access the site, and if you don't want to follow the TOS, you have to terminate the contract and can't access the site. You can't eat your cake and have it too. Also, there is a severability clause, which is valid: even if a clause would be illegal, it would be replaced by the closest legal clause, overwritten by the legal minimum, or removed, whichever is the least impact. The rest of the TOS is untouched and fully valid. Your conclusion is wrong and meritless.
You're thinking of &quot;unconscionability.&quot; In the United States, the general rule is that a contract provision will not be deemed unenforceable for unconscionability unless it is both procedurally and substantively unfair. A provision is considered procedurally unfair if it results from some sort of unfair asymmetry in bargaining positions. This could include situations where a party was acting under duress, had a diminished mental capacity, or unequal experience in the . A provision may be considered substantively unfair if it imposes disproportinately unfavorable terms on one party, perhaps by imposing costs far out of line with market prices, or by allocating all risk to that party. If the agreement is not both procedurally and substantively unconscionable, it won't be voided. So the Google TOS may be procedurally unfair because Google's market position gives it disproportionate bargaining power, but because they don't really impose any serious costs on you, they aren't unconscionable. Similarly, a contract provision requiring you to give me your house if you ever forget to turn off the porch lights at night wouldn't be unconscionable if it was agreed to after lengthy negotiations between our lawyers.
You cannot In a conflict between written and oral terms of a contract, the written terms prevail. In any event, by you utterance you have not accepted the contract; you have made a counter-offer which the other party has not accepted and have then gone on to accept their original offer. You would need the written agreement of the other party that they accept your terms and that they understand that clicking the “I accept” is not an acceptance of their terms but merely a means of completing the technical procedure.
This is actually pretty standard. You have a contract with a business to provide some service, and you get a bargain on the price of the service as long as you stay with them for some period, such as 2 years. You could get the 'pay as you go' option which doesn't have a termination fee, but that costs more if you are sure you can commit to what you signed up for, for that period. So it's not that you can't terminate the contract, it's that you can't just walk away from your obligation (what they call a "minimum term agreement"), cost-free. The early-termination fee is part of the cost of moving. You have to look in the Legal Agreements &amp; Contract part of Account Details on your account to get the specific agreement that you are bound by. Generally, you are subject to that fee, unless the subscriber dies, or is in the military and is shipped out. You can also transfer your service from area to area – I assume you either are moving to an area without Xfinity service, or you elected to not use Xfinity in that location. It is legal for a business to put their business interest above that of a customer, even in the case of regulated "utilities".
But even then, to my understanding, a contract can't prohibit a party from seeking legal remedies. You are mistaken. A contract settling a bona fide dispute regarding people's legal rights can mutually (or unilaterally for that matter) release or waive their legal rights. In fact, a waiver or release of rights is routinely a part of a settlement agreement. Hundreds of thousands, if not millions, of such agreements are entered into every year and they are almost always enforced. Sometimes, but not always, a settlement agreement will also call for a dismissal of a case with prejudice, which (roughly) means a dismissal that prohibits refiling a case involving the same subject matter.
I don't know of a specific legal term but such clauses are quite common in contracts which consist of more than one document. The English words "priority", "prevail" and "precedence" have the meaning you want, however, "precedence" runs the risk of being confused with "precedent" which does have a very specific legal meaning. A clause similar to: If there is any inconsistency or ambiguity between the English and Japanese language versions of the contract, the English version shall prevail. You need to make very sure that this clause can be translated unambiguously into Japanese!
No: &quot;meeting of the minds&quot; (also known as consensus ad idem) is not about what the parties actually subjectively understood or wanted. For contract formation, consensus ad idem only requires that it appears to an objective reasonable person that the two parties were assenting to the terms of the agreement. See generally, Westlaw Canada, &quot;Contract: I.2: Consensus Ad Idem&quot;; see also Cornell Law School, Legal Information Institute, &quot;Meeting of the Minds.&quot; &quot;[I]n contractual interpretation, the goal of the exercise is to ascertain the objective intent of the parties (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 49). &quot;Evidence of one party’s subjective intention has no independent place in this determination&quot; (Eli Lilly &amp; Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129 at para. 54). It is important to note that consensus ad idem is an objective, not a subjective test. As noted by the Alberta Court of Appeal in Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Company Limited, 2003 ABCA 221, at para. 9, the test is whether “it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty.” (Silver Eagle Management Inc. v. Onoway (Town), 2011 ABQB 139 at para. 60). Though the courts now have clearly adopted an objective approach to the analysis of contract, they occasionally use language that suggests that what is subjectively in the minds of the parties is important. It is sometimes said that there has to be a consensus ad idem (in Latin, literally “agreement to the same thing”) or that the parties “minds have to be at one”. Statements like this are misleading. No legal system can require that there be an actual “meeting of the minds”, for that would provide too much of an incentive to those who would like to contract with their “fingers crossed”. The requirement that a subjective agreement exist would permit one party to stay with a contract only so long as it suited its convenience; when it did not, the party could claim that it had never really agreed to the other’s terms. (MacNeil v. Dana Canada Corporation, 2008 CanLII 35689 (ON SC), at para 13, quoting Swan, Reiter &amp; Bala, Contracts: Cases, Notes &amp; Materials).