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The Marshall Islands have instituted Universal Basic Income via a cryptocurrency stablecoin. This requires the use of the Lomalo wallet. In the terms of service they say:

You agree to:

  • Not use Lomalo on any device you know (or should know) has been compromised, rooted, or jailbroken.

It seems to me quite unclear in what situations the section in parentheses would become relevant:

  • One possibility would be willful ignorance, if one went out of one's way to not know that a device was compromised as part of some scheme or other. However if this was the intended meaning they could use the words willful ignorance to make it clear what is restricted.
  • Another possibility would be if a "reasonable person" should know something but the user genuinely does not. However in this case how would the user know they are not supposed to use the app?

In what situations would a person be restrained by the phrase "or should know" where they would not in its absence?

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Phrases like "should know" or "ought to know" usually refer to the reasonable person test. This is an objective test which asks what a reasonable person would be expected to know in the circumstances. Because it's objective and not subjective, it doesn't matter what the actual person knows or doesn't know.

"In what situations would a person be restrained by the phrase "or should know" where they would not in its absence?"

For example, if you are the victim of a hack in which all your data stored on your phone is leaked onto the internet (e.g. contacts, photos, messages), then it's reasonable that you should know that your phone has been compromised (objective test). Without the phrase "or should know", the application of the clause would depend on whether you actually knew or not (subjective test).

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    It’s not subjective, you either knew or you didn’t, but it may not be possible to prove either way. Should have known doesn’t require a mind reader, lie detector or truth drug, just that under the given circumstances a reasonable person would have known. For instance if you haven’t registered your vehicle for several years, it’s entirely possible you just forgot and then never thought of it. But you should have known. Commented yesterday
  • @jmoreno "either you knew or you didn't" is known as a subjective inquiry in law. Commented yesterday
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    @jmoreno See What is the difference between a subjective standard of fault and an objective standard of fault in law? Commented yesterday
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    @jmoreno You're referring to the ordinary English meaning of the word subjective, but the words objective and subjective have a different meaning in law (as is often the case with legal terminology). Commented yesterday
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    @Flater That's one possibility, yes. But it also precludes cases where the person genuinely didn't know but ought to have known. For example, if I have a large pile of unopened mail next to my door that's been gathering for months I might genuinely not know that I've been sent a legal notice, but I ought to have known because I should have been opening my mail. A reasonable person would have known. Commented yesterday

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