International disclaimers of liability: useful for kindling?

IP Draughts bought a Kindle this week, as a present for someone close to him.  He was pleasantly suprised by the simplicity of the packaging and the lack of bumph; some consumer products seem to come with a large pile of leaflets, including guarantee registration forms, instruction manuals, simplified “getting started” instructions, terms and conditions of sale, and special offers on other products that the seller wants you to buy.

Most of the information required to use the Kindle is to be found in electronic form on the home screen.  Two paper documents are, however, included in the packaging.  One is a set of simple instructions on how to charge the device.  Clearly one needs to charge it up before the home screen can be accessed.

The second paper document is the inevitable set of contract terms, written in 11 languages in something like 6-point type on very thin paper.

IP Draughts is as guilty as the next person of clicking on “I accept” buttons on websites without reading the terms.  Studying these documents is a busman’s holiday for a contract lawyer.  So he may have already accepted the terms provided with the Kindle, when he ordered the product online. However, the terms that appear on the support page of the Kindle website seem to be completely different to these paper terms, even in the area of warranties and exclusion of liability.

If IP Draughts didn’t accept the terms set out in the paper version at the time of placing the order, then it is unclear how these terms can be binding on him, as they only became apparent after the contract is formed.  There is some wording at the beginning of the terms about returning the Kindle if you don’t want to be bound, of a kind that is familiar in traditional shrink-wrap licences.  It seems unlikely, however, that the typical buyer will be interested in reading these terms, unless he is really bored while waiting for the Kindle to charge.

It appears to IP Draughts (and it is good that it is morning, because reading this small font in the evening might be problematic for IP Draughts’ worn-out eyes) that the terms have been drafted by a US lawyer.  There are the usual paragraphs in block capitals, in a forlorn attempt to make the text conspicuous for the purposes of the Uniform Commercial Code.  There is the reference to merchantable quality, which has meaning under US law but has long ago been superseded by the term “satisfactory quality” in English law.  There is the exclusion of implied warranties, but no exclusion of implied conditions, as is important under English law.

The terms make a half-hearted attempt to work internationally, with some general “safety valve” wording acknowledging that certain terms may not be enforceable in some jurisdictions.  And right at the end of the terms is the following statement:

THIS “LIMITATIONS” SECTION DOES NOT APPLY TO CUSTOMERS IN THE EUROPEAN UNION.

Okay, thanks for telling us now, after we have carefully read the preceding two paragraphs!

At this point, IP Draughts is left wondering what is the point of including the terms in the packaging.  He turns to the French version of the text, to see how well the terms have been adapted to French law and legal concepts.  So far as he can tell (his French is only at a conversational level and does not extend to legal terminology), the French text is just a straight translation of the English-language text.  It includes an exclusion of:

LES GUARANTIES DE QUALITE MARCHANDE, D’ADEQUATION A UN USAGE PARTICULIER ET DES VICES CACHES OU LATENTS

Somehow, vices caches ou latents sounds more exciting than hidden or latent defects. IP Draughts claims no expertise in French law, but is under the impression that there is no legal concept of merchantable quality (as distinct from fitness for purpose) in French law.  If that is correct (and our very knowledgeable readers will no doubt put IP Draughts right if it is incorrect), then  it raises the question in IP Draughts’ mind as to why Amazon has bothered to translate the text into 10 other languages.

It seems very strange that a company would try to exclude liability to a French-speaking consumer using complex, US-based legal language.  Isn’t it time we made a bonfire of these pointless disclaimer booklets, which probably don’t achieve their desired effect in most jurisdictions that have consumer legislation?

2 Comments

Filed under Contract drafting, General Commercial

2 responses to “International disclaimers of liability: useful for kindling?

  1. My guess: the Kindle units are manufactured and packaged in China, Taiwan, Mexico, or a similar locale. The factory has no idea which units will be shipped where; thus, there’s a one-size-fits-all flyer.

    My further guess: the lawyer at Amazon (USA) who drafted the document understands the essential futility of a generic disclaimer but believes, rightly or wrongly, that it’s better than nothing. Given the relatively low risk that a Kindle will actually harm a user and the relatively high likelihood that if a liability problem were to arise, even a targeted disclaimer might be of limited practical value, the lawyer opted not to spend too much time on the disclaimer.

    • Chuck, fair enough, but I would probably have used the nationally-focused disclaimers that appear on the website (and appear to have gone through national legal review), in preference to this generic junk.

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