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Anti-Disparagement Clause


13 replies to this topic

#1 sperry

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Posted 03 December 2013 - 01:06 PM

http://www.cnn.com/2....html?hpt=hp_t3

 

So apparently this is a thing?  Is there any way that this would stand up in court?  I'm thinking most courts would refuse to enforce it, at least in the context of a retailer against an individual where the contract term wasn't specifically bargained for, but any board lawyers care to correct me?

 

I mean clearly the clause in the "kleargear.com" contract wouldn't pass muster, but the other one mentioned in the vacation home contract seems slightly less preposterous.


Edited by sperry, 03 December 2013 - 01:08 PM.


#2 Tempra

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Posted 03 December 2013 - 01:20 PM

http://www.cnn.com/2....html?hpt=hp_t3
 
So apparently this is a thing?  Is there any way that this would stand up in court?  I'm thinking most courts would refuse to enforce it, at least in the context of a retailer against an individual where the contract term wasn't specifically bargained for, but any board lawyers care to correct me?
 
I mean clearly the clause in the "kleargear.com" contract wouldn't pass muster, but the other one mentioned in the vacation home contract seems slightly less preposterous.

Contract provisions don't have to be "specifically bargained for" to be legally enforceable. Most contracts people enter into are contracts of aadhesion in which only one party actively participates in the drafting of the contract. Still, I think courts should void these types of provisions as unconscionable and against public policy.

Edited by Tempra, 03 December 2013 - 01:22 PM.


#3 The Great Unwashed

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Posted 03 December 2013 - 01:21 PM

http://www.cnn.com/2....html?hpt=hp_t3

 

So apparently this is a thing?  Is there any way that this would stand up in court?  I'm thinking most courts would refuse to enforce it, at least in the context of a retailer against an individual where the contract term wasn't specifically bargained for, but any board lawyers care to correct me?

 

I mean clearly the clause in the "kleargear.com" contract wouldn't pass muster, but the other one mentioned in the vacation home contract seems slightly less preposterous.

 

Adds another reason to my list of why I don't shop online.

 

And yet another example of why corporations are evil, soul-sucking demons from the fiery pits of the Seven Hells.



#4 sperry

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Posted 03 December 2013 - 08:22 PM

Contract provisions don't have to be "specifically bargained for" to be legally enforceable. Most contracts people enter into are contracts of aadhesion in which only one party actively participates in the drafting of the contract. Still, I think courts should void these types of provisions as unconscionable and against public policy.

 

 

That's what I was referring to.  I think they would honor a term like this if it was something the parties actually bargained for, and probably wouldn't if it was tucked away in the fine print that consumers never read, because it would be unconscionable and against public policy to do so.


Edited by sperry, 03 December 2013 - 08:23 PM.


#5 sologdin

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Posted 03 December 2013 - 09:24 PM

tempra--

any idea if a clause added post-agreement is enforceable, unconscionability aside?


seems like anti-disparagement clauses for sales of goods and services are contrary to basic market mechanisms and should be prohibited.

sued for malpractice? counterclaim for disparagement!

#6 Which Tyler

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Posted 04 December 2013 - 12:04 AM

Surely kleargear never upheld their end of the contract (is providing the goods) they were already in breach of contract, and it was therefore null and void anyway, regardless of the legality of the specific clause

#7 Seli

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Posted 04 December 2013 - 05:01 AM

Surely kleargear never upheld their end of the contract (is providing the goods) they were already in breach of contract, and it was therefore null and void anyway, regardless of the legality of the specific clause

Exactly.



#8 Ser Scot A Ellison

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Posted 04 December 2013 - 06:10 AM

If it's an adhesion contract an "anti-disparegment" clause sounds unconsciounable to me. Who would agree to not complain about a product that didn't do what it was promised to do as a condition of purchase or to not complain about poor service or food at a restaurant?

Edited by Ser Scot A Ellison, 04 December 2013 - 06:16 AM.


#9 sologdin

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Posted 04 December 2013 - 06:33 AM

Surely kleargear never upheld their end of the contract (is providing the goods) they were already in breach of contract, and it was therefore null and void anyway, regardless of the legality of the specific clause


doubtful it'd be a nullity. more likely there'd be a defense to the disparagement claim that vendor failed to perform.

#10 Sturn

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Posted 04 December 2013 - 06:38 AM


Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

 

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

 

It almost reads like a joke. I can't imagine a person typing this and not wondering if it was a huge mistake. Luckily it seems kleargear will soon go belly up.

 

I need one of these at my cop job! I should hand out a Non-Disparagement Agreement when I get a call for assistance at my job. "Sorry, I can't try to help you until you agree to never bad mouth my service. If you later make a bad comment on Facebook or Youtube about me, you will be fined." Awesome. :thumbsup: *

 

*DISCLAIMER: Yes this last paragraph was meant as sarcasm. I'm not responsible for any thread derailment caused by an anti-cop rant by someone taking this last paragraph as serious or taking it as sarcasm but failing to resist the opportunity to say something bad about a cop's statements. Furthermore, by having read this disclaimer you have agreed to the terms of being fined by this poster for up to $3,500 if you make such a negative post anyway and refuse to remove it within 72 hours of this poster requesting such removal.



#11 MinDonner

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Posted 04 December 2013 - 06:41 AM

Not a lawyer, but it sounds highly dubious to me. Just because something is in a contract and signed by both parties, still doesn't make it legal. I mean, I could contractually agree to forfeit my firstborn in the event of defaulting on my gas bill, but that doesn't mean the gas company could ever come and collect on that. Same with those "we accept no responsibility for any loss or injury while on our premises" - nice try guys, but it doesn't quite work like that.

#12 larry's loose pajamas

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Posted 04 December 2013 - 06:48 AM

I accept no responsibility for the non-existence of the bridge I just sold you.  Booyah!



#13 Ser Scot A Ellison

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Posted 04 December 2013 - 07:07 AM

Min,

"You wanted to donate your liver...? Well, you signed the card didn't you?"

#14 Tempra

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Posted 04 December 2013 - 08:47 AM

tempra--

any idea if a clause added post-agreement is enforceable, unconscionability aside?


seems like anti-disparagement clauses for sales of goods and services are contrary to basic market mechanisms and should be prohibited.

sued for malpractice? counterclaim for disparagement!


Are you imagining a scenario where the party that drafted the contract of adhesion exercises it's right to later modify the agreement at its discretion? Not sure. I suspect they aren't enforceable and shouldn't be. I have noticed with increasing frequency that certain companies will force you to accept their modified user agreements / terms of service before you can continue using the product. I would much rather be in court arguing that the consumer accepted the modified terms because he clicked "I accept" than arguing that their continued usage of the product signaled assent to the modified terms.



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