Terms and conditions: a Faustian pact?

Playbill of the first performance of "Faust, The tragedy of the first part" by Goethe in Weimar on 29 August 1829

The online computer games company Gamestation pulled a clever terms and conditions stunt for April Fools’ Day, which caught out over 7,500 customers.  What they did was amend their online terms and conditions by including the following:

By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non-transferable option to claim, for now and for ever more, your immortal soul.

Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamestation.co.uk or one of its duly authorised minions.

We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act.

If you:
(a)  do not believe you have an immortal soul;
(b)  have already given it to another party; or
(c)  do not wish to grant Us such a license,
please click the link below to nullify this sub-clause and proceed with your transaction.

Had any customers clicked on the link, they would have been led to a page notifying them that the clause was an April Fool and congratulating them on being “so vigilant” by offering them a £5 voucher.

Consumers who purchased games online at Gamestation on 1 April 2010 should perhaps not be too concerned about the appearance of 6 foot letters of fire demanding their immortal soul, as a result of consumer protection legislation that makes the careful reading of standard terms and conditions less important.

Consumers are substantially protected by the Unfair Terms in Consumer Contracts Regulations 1999 (as amended). These regulations provide that where a contractual term which has not been individually negotiated causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, then it is an unfair term.

If a seller or supplier attempts to include an unfair term, the term is not binding on the consumer.  However, the Regulations do not apply to terms that relate to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

So provided a court does not consider that the grant of an option of an immortal soul is part of the price paid for a computer game, this Faustian clause is not binding.

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