The Lawbringer: Euro-ver my head, contract law edition

Welcome to the Lawbringer, your weekly stop at the intersection of law and Warcraft. I am your crossing guard, trying desperately to not get run over myself.

First, I want to apologize for being a day late, but my week was spent preparing for the Multistate Professional Responsibility Exam. Unfortunately, the test was channeling Illidian. If I get a letter in a few weeks saying that I'm not yet responsible enough to be a lawyer, I will not be surprised.

Anyway, on to this week's promised topic: European Contract Law. We'll be approaching the same topics we covered on my side of the pond: contract formation, contract termination, and unfairness. These concepts form the basis of players' relationship with Blizzard, just like they do in the US. Whether Blizzard has the right to publish information about your avatars, ban you from the game, delete your achievements, or force you to resolve disputes in a mediation are all affected by the laws of the country in which a player resides.

The first challenge in this column is that there traditionally has been no "European" contract law; these issues were decided at a national level through the home country's common or civil law system. Trans-nationalism being all the rage, however, the politicos of the European Union have formed the Commision on European Contract Law which has drafted Principles of European Contract Law. A Common Frame of Reference "toolbox" to help various European legislatures standardize the various laws of contract across the continent to match these Principles. What this means, though, is that this law is in a state of flux -- and I am not a barrister, abogada, rechtsanwalt, advokat, or avocat. Take everything in this column with a big grain of salt. And possibly a margarita to wash it down.

This column will go through each of the three topics, touching on English version of the law and then comparing it to Danish, French, and German law systems. The English system is common law formed over hundreds of years of cases, as we saw last week. It is different than the Scot or Irish legal systems, so I will not be designating it as United Kingdom. Danish law is representative of all Nordic legal tradition, a pragmatic civil law system with codes almost identical to those found in Sweden, Norway, Iceland, and Finland. France's law code is the Napoleonic Code of 1804, the model for Belgium, Holland, Luxembourg, Switzerland, Italy, Spain, Egypt, Louisiana, Quebec, and most South American countries. The German Civil Code of 1900 is the last of the great 19th Century codes, and serves as a basis, to greater or lesser extent, for codes in Japan, Greece, Austria, Turkey, and even the People's Republic of China. Obviously, this is not a list of every country in Europe, but it provides a good background. I'll also try to note any differences between established law and what may change with the Principles of European Contract Law. Finally, I'll describe what all this means for the European WoW community. And read very carefully; I will type this only once.

Contract Formation

The common law and civil law system are somewhat different in how they treat contract formation, so I'll separate my discussion of them.

England

We'll start with the English common law concept of Intent. As in the American system, offer, acceptance, and consideration are requirements, but an English contract first and foremost requires that both parties intend to have a contract, as seen from an objective observer (i.e. the court) Unlike the American system, in which the validity of the contract rests on whether the other party thought there was a contract (good old Lucy v. Zehmer again), whether the parties intended an agreement is based on whether a judge thinks they did. Summit Investment v. B.S.C., 1987.

Offer, Acceptance, and Consideration work in England much the same way they do in the US. The offer must clearly be a decision to enter into a specific contract; an "invitation to treat" -- an announcement that one is willing to do business -- isn't sufficient to constitute an offer. Acceptance can be performed in writing, verbally, or through actions, the last being how shrink-wrap licenses are permitted in England. Consideration is a concept unique in common law, so while it is necessary in England and its legal "descendants," it is not part of the Continental civil law system.

An analysis of the EULA and TOU from a British perspective yields a product substantially similar to an American one. By selling and purchasing the software, the parties show an intent to form a contract. An offer "Pay for playtime and behave by our rules and you can play in our toybox" is accepted "Click yes" and consideration of the purchase price and monthly fee is given. A contract is formed!

Civil law

Civil law countries include requirement for offer and acceptance, but consideration is not necessary. Displaying goods with a price or otherwise holding out oneself as a merchant or service provider may constitute an offer (Denmark, France), or it may only be an "invitation to treat," (Germany). Acceptance, at least for our purposes, works similarly to the English system, in that a contract cannot be formed without a second party agreeing to the offer. This is as good a place as any to point out that traditionally, civil law countries refer to the law of contract as the law of obligations; I'll be sticking to the "contract" label for simplicity.

Under the various civil law systems, the EULA and TOU are valid contracts. Whether the offer comes from a catalog advertisement or by presenting the disk in a store, players accept the offer. No money has to change hands to make contract "official," unlike in a common law system. Of course, money does have to change hands to avoid a breach of the contract, as players promised to pay.

Principles of European Contract Law

The new Principles document rehashes much of the same concepts. Parties have to intend to create a contract, there must be an offer of sufficient specificity to form a contract, an advertisement may constitute an offer, and acceptance can be done through word or deed. As the principles are close enough across countries (for our purposes, at least), whether legislators in London, Paris, Berlin, and elsewhere surrender even more of their sovereignty to Brussels is irrelevant to the validity of players' contracts.

Termination

Terminating a contract operates much the same way it does in the US -- the contract can be aborted by not giving acceptance, revoked through informing the other party, or terminated by breaching the contract. All three systems (amazingly) agree on these points. As for Euro-WoW-ers, they have those same options. Y'all can:

a) not accept the terms of the EULA/TOU,

b) withdraw from the contract, or

c) breach the contract.

These are exactly like the provisions we talk about three weeks ago.

Click through to learn about unfairness and how all this affects WoW players!

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