Adulterous Contracts
posted by Nate Oman
The recession seems to be good for business at dating sites, including AshleyMadison.com, which is giving GirlsGoneWild.com a run for its money for the sleeziest business model award. AshleyMadison devotes itself to the facilitation of extramarital affairs. The Terms of Service contract makes for some interesting reading.
AshleyMadison seems pretty determined not to be bound to actually provide anything in the way of services to its clients. Having disclaimed any and all warranties, the fine folks at AshleyMadison.com go on to insist that:
YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM, RELATING TO OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE OUR SERVICE.
I have to confess that I feel a kind of guilty pleasure in teaching the doctrine of consideration. I enjoy playing with the complexities, but there is something a bit surreal about the whole affair. Yet here we seem to have about as close one can come to a straight out illusory promise. What exactly is AshleyMadison.com promising if it isn’t promising the use of its site? On the other hand, they are quite insistent that they can troll through all of their client’s data, including the sweet-nothings that they IM to one another, all of which may be used “for market research and/or customer experience and/or quality control and/or compliance purposes.”
Of course, even if you did manage to find some obligation someplace in the contract that AshleyMadison.com breached, all of your damages would be capped at $100 by the liquidated damages clause. The real kicker, however, comes in the indemnification clause. AshleyMadison’s clients:
Agree to defend, indemnify and hold us, and our subsidiaries, parents, affiliates, and each of our and their directors, officers, managers, members, partners, agents and employees, harmless from any claim, demand, action, damage, loss, cost or expense, including without limitation, reasonable attorneys’ fees, incurred in connection with any suit or proceeding brought against us arising out of your use of our Service or alleging facts or circumstances that could constitute a breach by you of any provision of these Terms and/or any of the representations and warranties set forth above. If you are obligated to indemnify us, we will have the right, in our sole discretion, to control any action or proceeding and determine if and how we wish to settle it.
In other words, if your irate spouse sues AshleyMadison.com for its part in the destruction of your marriage, you get to pay AshleyMadison.com’s lawyers (and depending on the terms of the divorce settlement, perhaps your irate spouse’s lawyers as well).
The contract as a whole raises a nice question of public policy. Should such an agreement, which is meant to facilitate and profit from adultery, be void as a violation of public policy? One might point to the continuing criminalization of adultery in some jurisdictions and the state’s general policy in favor of supporting marriage. On the other side one could point to the desuetude of anti-adultery laws and no-fault divorce. It’s a nice exam hypo. The AshleyMadison.com contract itself contains both a forum selection clause and a choice-of-law clause in favor of Ottawa, Canada. Apparently the jurisdiction of choice for this line of business. Is there any law in Ottawa on adultery facilitation contracts?
March 30, 2009 at 10:23 pm
Posted in: Contract Law & Beyond
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Responses (7)
Lawrence Cunningham - March 31, 2009 at 12:03 am
Why Ottawa? Is it a civil law jurisdiction, so not an adherent of the consideration doctrine as the primary basis of contract formation?
The public policy difficulty reminds me of the chestnut appearing in the Dawson et al Contracts casebook, Whitten v. Greeley-Shaw (Maine 1987) refusing to enforce formal agreement between two in extra-marital relationship by applying strict bargain theory of consideration, without getting into the exact public policy question).
Kaimi - March 31, 2009 at 1:28 am
Maggie Gallagher recently suggested that a revived tort of alienation of affection would be a good idea, because of websites like this. (Eugene Volokh disagreed.)
Miriam Cherry - March 31, 2009 at 7:11 am
Ok, so the website is morally reprehensible. Is the site any worse than the individuals who use it?
The contract may be pretty one-sided, but that seems to be a secondary question…
Websites don’t commit adultery, people do (snarky paraphrase of another Volokh blogger).
Nate - March 31, 2009 at 8:08 am
Ottawa is a common law jurisdiction. I think that it was chosen because the business is based in Toronto.
Miriam: I completely agree that the users of the site are more morally reprehensible than the users. The site is still pretty sleezy…
A.J. Sutter - March 31, 2009 at 9:21 am
I’m not sure I understand what makes it a good exam hypo: is it good because there is a good complex issue about blackletter contract law per se, or because you want to elicit public policy arguments? If the latter, is that really what people are testing on in contracts courses these days?
nate - March 31, 2009 at 10:42 am
Oops. I should have typed “than the site owners.” It was a long night with a 21-month-old who has an earache…
A.W. - March 31, 2009 at 11:55 am
Not sure about Ottawa law, but if we go by american law, you don’t need classical consideration: you have detrimental reliance.
The public policy issue, however, is more interesting. Its obviously legal to cheat, but i would say that the law shouldn’t lift a finger to help people cheat. So it is unenforceable.
Of course if this site is smart, they will be paid upfront.
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