I get the question, but the answer is yes it is definitely possible.
Just one of the possibilities, is if C is actually the same as B. I hate to even use this example, but it is simply one of the strongest and clearest. Moreover, if the hackers were the same as the DAO creators it would only pour on the liability, it would show their knowledge that the code would let them take the investors money and intent to defraud when soliciting investors money.
Even in set of facts most likely to support the DAO let me do it Defense say a minor who bought in, found the vulnerability and exploited it as a lone wolf. Then the minor gets sued in civil court for breach of contract and invokes the old not only did the contract let him do what he did, but if it didn't the contract isn't enforceable against him anyway because he is a minor defense. At the end of the day I have a hard time believe any court would allow the minor to keep ~$40M of other investors money, even if the contract says he can, simply because I don't think there is a court that would find it unconscionable. Unconscionable contracts being a term of art for contracts the courts won't enforce, even though they are otherwise legal and valid, because it is unfair.
> contracts the courts won't enforce, even though they are otherwise legal and valid, because it is unfair.
is there some kind of common law that would indicate what sort of contract would be deemed unfair? Because a lot of contracts seems to be drafted in favour of one party, and the expense of the other, simply because of power imbalance. Employment non-compete contracts tend to have this property. What about assymptotic licensing like those of software/service EULA (e.g., where they have a clause that says they can terminate your service for whatever reason they desire).
>is there some kind of common law that would indicate what sort of contract would be deemed unfair?
The controlling law for a specific contract would come from stare decisis or the precedent as set by case law.
Your gut it on point, because although employers get away with a lot, it is one of the areas courts are likely to find contracts to be unconscionable as a natural result of the unlevel playing field between the two parties.
>Employment non-compete contracts tend to have this property.
Definitely, and it leads to very specific case law. For example, case law might be specific to a profession (say a doctor) and geography (any restriction on competition outside of 20 miles is unenforceable). Keep in mind case law is jurisdiction specific, so say a 20 mile radius non-compete against a doctor in a major city might be enforceable, but in another jurisdiction say a small town where there are only two licensed doctors, the court may very well find it would be unconscionable to enforce the non-compete because it would limit the communities access to healthcare.
>What about assymptotic licensing like those of software/service EULA (e.g., where they have a clause that says they can terminate your service for whatever reason they desire).
It is difficult to try to answer legal questions in a vacuum without a specific set of facts, but as a general rule you can certainly have a contractual right to terminate the contract. Another general rule would be the courts are more likely to provide damages than any equitable relief, meaning, say my EULA didn't include the a termination provision, then I stop providing you access to my software and you sue me. If the court agrees with you, the court's ruling is far more likely to have me pay you the monetary damages you suffered before they are to order me to continue providing you the software under the contract (though there is always exceptions and some cases the court will make a party actually perform the contract).
Just one of the possibilities, is if C is actually the same as B. I hate to even use this example, but it is simply one of the strongest and clearest. Moreover, if the hackers were the same as the DAO creators it would only pour on the liability, it would show their knowledge that the code would let them take the investors money and intent to defraud when soliciting investors money.
Even in set of facts most likely to support the DAO let me do it Defense say a minor who bought in, found the vulnerability and exploited it as a lone wolf. Then the minor gets sued in civil court for breach of contract and invokes the old not only did the contract let him do what he did, but if it didn't the contract isn't enforceable against him anyway because he is a minor defense. At the end of the day I have a hard time believe any court would allow the minor to keep ~$40M of other investors money, even if the contract says he can, simply because I don't think there is a court that would find it unconscionable. Unconscionable contracts being a term of art for contracts the courts won't enforce, even though they are otherwise legal and valid, because it is unfair.