Re: Responses to "Spam costs and questions" (long)

[Paul Bradley <paul@fatmans.demon.co.uk>]

> The prospectus is a legal document -- part of the contract between the
> mutual fund and the customer. 
> 
> So, the question is, should there be any legal constraints on the 
> "speech" in contracts?  

Of course, a contract is a binding document, that does not imply that 
there should be any legal constraint on the speech within that contract. 
If I sign a contract which says that I must kill myself on demand, and 
the penalty for breach of contract in this case is a fine of say $5000, I 
am certainly stupid if I sign such a contract, assuming that is that I am 
logical and not suicidal, I must later decide if I value my life at over 
$5000, I assure you, this is not a difficult question to answer ;-).

The point is that breach of contract shouldn`t be a criminal offence, it 
is a civil offence, and the penalties for breach of contract should be 
agreed during negotiation of that contract. Therefore, I must evaluate 
for myself if I consider the contract to be reasonable and if I consider 
the penalties for breach of that contract too great to risk incurring 
such penaties. There is no reason to suggest that contractural speech is 
protected in this fashion, as it is an agreement and not pure speech.

>Can I sign a contract, and later be able to 
> say "Oh, *that* clause!  That was just a *joke*"?

This is a straw man, there is no way you can equate contractural speech 
and other forms of speech, one takes the form of an agreement, the civil 
crime commited on breach of contract is not a form of speech, it is an 
overt act which breaks that contract. 

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