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Constructive Notice Makes Sense – Here’s Why

Logo for Quora, where Dana Shultz answered a question about constructive noticeThis post is about a legal concept, constructive notice.

Its origin is a Quora answer that I provided. Please see If nobody reads the Terms of Service then how can they legally be acceptable as a disclaimer?

Requiring that Terms Be Read is Impracticable

There was an assumption inherent in the Quora question: Terms of service should be binding only if the user has read them.

However, if the law simply said “unread terms of service have no effect,” then no one would read anyone else’s terms. As a result, no one’s terms would have any effect or would be enforceable!

This would be counterproductive. Creating any binding terms – even those that are reasonable and readily acceptable – would become impossible.

Constructive Notice Suffices

So the law, instead, says something along the line of the following:

If a service provider makes its terms of service sufficiently conspicuous and a user chooses to ignore those terms, then that is the user’s problem, rather than the service provider’s.

This is called constructive notice. It suffices to bind users to the provider’s terms when the user has notice of those terms. In my opinion, such law is appropriate.

For further discussion of this issue, please see Online Terms can be Binding, even if You don’t have to Click!

Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
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