I can only comment from the point of Australian (and probably English) law, but the situation seems to me to be like this. A contract will only be considered binding by the courts if there are a number of elements of the contract present, one of which is consideration. In most software purchases consideration is given at the counter - you give the assistant your hard-earned cash, he gives you a box containing software. The contract here is between you and the shop you have bought the software from, not between you and the software company. The contract involves the transfer of the media and the information on it to you; this is clearly a term of the contract since the assistant gives it to you willingly in exchange for money, and this is the centuries old accepted practise in retail situations.
Now when you go to install the software and are presented with the EULA thingy, Microsoft (or whoever) are attempting to impose a contract on you. For this contract to be valid there must be consideration given. Where is the consideration for the user? Microsoft (or whoever) is imposing conditions on their use of something they already own - this is not good consideration, as has been shown in a number of contract cases in the past.
So I can not see how the contract is valid. Microsoft has sold the contents of that box to a distributer, who has sold it to a reseller, who has sold it to the customer. What room is there for a contract between Microsoft and the customer?
Slashdot Mirror
I can only comment from the point of Australian (and probably English) law, but the situation seems to me to be like this. A contract will only be considered binding by the courts if there are a number of elements of the contract present, one of which is consideration. In most software purchases consideration is given at the counter - you give the assistant your hard-earned cash, he gives you a box containing software. The contract here is between you and the shop you have bought the software from, not between you and the software company. The contract involves the transfer of the media and the information on it to you; this is clearly a term of the contract since the assistant gives it to you willingly in exchange for money, and this is the centuries old accepted practise in retail situations.
Now when you go to install the software and are presented with the EULA thingy, Microsoft (or whoever) are attempting to impose a contract on you. For this contract to be valid there must be consideration given. Where is the consideration for the user? Microsoft (or whoever) is imposing conditions on their use of something they already own - this is not good consideration, as has been shown in a number of contract cases in the past.
So I can not see how the contract is valid. Microsoft has sold the contents of that box to a distributer, who has sold it to a reseller, who has sold it to the customer. What room is there for a contract between Microsoft and the customer?
Anyone wanna try a test case?
Tom