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Monday, July 18, 2016

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Chanson de Roland

The common law, which is the basis of our legal system, has an ancient remedy to protect the rights of a person, whose disabilities, such as ignorance, illiteracy, lack of bargaining power, possible coercion, etc., create a situation where his assent to an agreement doesn't expressly a free, meaningful, fairly negotiated, and/or knowledgeable consent. That remedy is the law of status. Status arose from the time when the Lord of the manor, who had his scribes, clerics, and other early predecessors to lawyers, negotiated written agreements with illiterate peasant, who allegedly expressed their assent to the binding agreement, which usually involved interests in realty, by placing their mark as their signature on the agreement.

This, of course, was an utter sham and amounted to little more than larceny by trick. In addition, the illiterate peasant was often aided in his decision to place his mark on the agreement by the presence of several of the Lord's men-at-arms being in attendance to witness the ceremony to encourage the peasant to assent to the agreement.

To remedy this injustice, the common law developed the law of status, where one's conditions, such as being a peasant, prohibited the Lord from entering into certain types of agreements with the peasantry and guaranteed to the peasantry certain rights in their land and/or tenancies, notwithstanding anything in any agreement to the contrary.

Today, as described in the article, supra, we have the similar disparities of power, knowledge, and/or circumstances that characterized the relationship between Lord and peasant in the Middle Ages, where today the consumer, even though usually literate to some degree, either can't understand the complex agreements that are offered to his for his assent and/or has no bargaining power because there are no alternatives in the market for needed service or good. And thus, we need the same remedy: We need a certain status for the consumer which guarantees that he has certain intellectual property and privacy rights in his personal information, notwithstanding anything to the contrary in any agreement between himself and entities that collect and trade in his personal information.

For the sham of notice and informed consent is just that, a sham, in this matter and in many other areas of consumer contracts. But staying with this matter, as a matter of status, most consumers should have nearly unalienable IP rights in their personal information and rights of privacy, which can only be alienated in certain limited and prescribed ways for a limited amount of time, let's say not more than five years.

Status is nothing new. While it has been much limited today by statue and case law, it still exist in, for example, rules that restricts certain types of investments to only qualified investors; in that status arrangements that protect the spouse’s, usually the woman’s, interest in marital property, when she has spent her life rearing the children woman, but whose husband find the charms of a younger woman more enticing; in an array of laws that protect children and those with cognitive impairment and other disabilities; in laws that prohibit enforcement of contracts against a party where the lack of competitive alternatives or some other disparity in bargaining power is manifestly unfair and the result shocks the conscious.

In our world today, were the disparities of knowledge, skill, and understanding place consumers in situations where their alleged assent to agreements is a sham, it is a time for a return to the law of status.

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