I think this is an example of contracts being broken, often online but elsewhere too. You can't rent a hotel room without a credit card which helps hotels avoid you running off without paying for minibar peanuts or rock star damage to a room. OTOH, the fact that you can't update your iphone, rent a hotel room or do a lot of other things without agreeing to a "contract" or policy so long that it's impractical to read it, is a clear sign this institution is broken.
We need new laws. Not the vague hodgepodge we have now. Policies designed to not be read need to be considered completely invalid. This credit card charge should be treated like any merchant taking a card and then charging £100 more than expected. Fraud, theft, some mild form of racketeering, whatever that falls under.
I think the most common abuse of this sort is "out of contract" telecom charges where using 2X the contract number of minutes or data could result in over 10X (often over 100x) the cost of the original contract.
I'm not sure how exactly the laws need to work, but there is obvious stretching of the systems well past the point of ridiculous. An iphone privacy policy or a hotel "sign this" agreement is not free actors contracting freely.
Also, the sooner "pull" payments become a rare exception, the better. If hotels need some sort of escrow, then it should be an escrow.
We are about to shell out ~£15k to a recruiter who sent us the CV of someone (completely cold, without the person's consent, or us having any relationship with them) we hired via another recruiter, but a year down the line are pressing a claim, as in their contract, receiving an email from them is deemed acceptance.
This is apparently perfectly legal in the UK, and I'm considering starting a business which simply sends spam, with T's and C's in each email which state that by receiving the email you have agreed to become a paying customer, and to pay any fees we demand for "the service", which is receiving the email, which allows you to know that your email is working. The intent of course not being to be another scammer, but to get the law changed.
If the situation is as you describe, sending unsolicited email and then charging you for receiving it (that's essentially what you're describing) when you have clear evidence you hired via the prior contact with another agency (they have that documented, right ?) is something which can be easily fought - albeit in court with some initial costs if they're going to be ass-ish.
You would win both your case and the legal costs if things are as cut and dried as you suggest.
However, if you replied to the unsolicited email (establishing you saw it) and there is no evidence of the prior agency being before that, you have a more difficult case. My personal experience of two agencies being involved was that the agencies sorted it out amongst themselves how to split the single fee which was paid to one of them - this was in the UK as you seem to be.
Only an experienced lawyer familiar with the details of your situation can properly advise you. I'm curious that you've been advised to settle if you've consulted a lawyer and appraised them of the situation you describe. Normally lawyers like slam-dunks like this.
My experience is recruiters don't send unprompted candidates because, without a prior agreement/contract, they will have difficulties in establishing they made an initial introduction and hence qualify to get paid. Otherwise they can just mailbomb you with millions of name variations and claim they introduced you to everyone on the planet and you owe them $$$$$s. [I think you realize this with your 'proposed' new business venture. ;-) ]
I am not a lawyer, but have had a similar argument with a recruiter in the past (their claim sounds like it was rather more concrete than this one). We sent them a firm letter from a lawyer, and never heard from them again. It might be worth taking advice before paying the £15k.
Ooh, that gives me an idea: What if I put a clause in my T&C stating that if you run a business and use my service, you agree to not be an ass about your own T&Cs (with an appropriate definition of ass-ish behavior)? And what if a whole slew of other start-ups did as well?
Probably not enforceable -- but it'd be hilarious if having a no-bad-review clause in your T&C made you liable to, for example, the Flappy Bird developer.
My first reaction on reading this was, "What about the Unsolicited Goods and Services Act and similar legislation?" However, a few minutes of Googling and reading up on contract law on Wikipedia suggests to me that there's a very real problem here. It turns out that unsolicited goods and services legislation only applies to consumers: for B2B it's somewhat more complicated.
For a contract to be valid, four things are necessary: an offer, an acceptance, a consideration, and an intention to create a legally binding relationship.
You can't accept a contract just by reading it: you have to take some action indicating your acceptance. Normally this would be by communicating it, but in the case of unilateral contracts (e.g. software licence agreements), it can be by some other action such as clicking an "I agree" button.
I'd guess that what is going on here is that the recruiter is trying to argue that you've indicated acceptance of their contract by hiring the guy. I'd guess that a paper trail to another agency would give your case some weight, but I'd guess that YMMV on that one.
No, we're fighting via our lawyer, but if it does end up in court, we will likely lose as contract law is pretty strong in the UK - and apparently this is a significant part of this recruiter's business model, so they're well practised at it and have test cases in which they've been victorious.
Why not send an email to them with a contract that nullifies the previous contract? I would love to hear a judge try to justify why one contract is enforceable for just receiving and email and another is not.
Have you signed an exclusive contract in ink? If not then coder is a shared resource. Though laws can be draconian and make you guilty even in event of actual innocence.
I think this is a good example of how the current approach is broken. The "consumer protection" approach which basically deems clauses as valid or not is much weaker for businesses.
As others said, clauses like these are already considered null & void and the charge fraudulent, so I don't see this as a particularly good example of why laws must be changed.
With regards to very long contracts, and without meaning to defending all instances of them (since some are clearly just meant to obfuscate), how do you separate a contract "designed to not be read" from one that honestly tries to cover all edge cases and explain exactly what the terms are?
Some products - like the iPhone - are very complex. It's not easy to describe what information is gathered, with whom it is shared and how you can withdraw your consent, for each feature (Location, Siri, messaging, calls, etc) without a very long document. What do you propose they should do?
One test could be proportionality. If the contract is in regards to a loan, major purchase or similar spending time and money understanding the implications of the policy is reasonable.
With Siri, I don't propose anything. I am simply stating the obvious. As an owner of an ipad, I have not really agreed to anything with Apple. They are pretending like we have an agreement, but we don't. If people really needed to read and understand the terms and conditions, 99% of people would not have updated the OS and Apple would have to change the way they do things.
Maybe they just need to make the information available and not get my consent. Maybe some feature require consent and so can't be pushed to my phone without an action on my part. I don't know what the alternative is.
I do know that this agreement between me and Apple is much more like an agreement between Apple and a 6 year old then the one between me an my employer. In the real world, it is not a contact. My click does not really denote agreement.
Don't you think that the reason your click doesn't denote agreement is because of how we have evolved and adjusted over time? The process of agreeing to terms and conditions has become subconscious. Although I agree that the contract between Apple and the buyer is essentially worthless, it has only become worthless because of how consumer habits have evolved therefore essentially making our clicks non-consensual.
I can only state the problem as it's not my place or area or expertise to state the solution but here's my opinion; buyer/seller contracts aren't standardised and therefore when people sign a contract they are not reading through it either because of:
1. Laziness
2. Evolution/Habit
Therefore we need to somehow make it so there isn't asymmetric information between the buyer/seller. This has to accomodate for the habits that have evolved through our evolution and somehow be more explicit to our newly formed habits. A shit suggestion would be: Standardise contracts for certain procedures e.g. getting a hotel room should have a standardised contract but then should have very short appendices that indicate any customisations that the hotel has made. As I said, it's a bad suggestion but i'm sure someone else can and should solve the problem.
Although one question we should ask ourselves... should we re-invent the wheel for outlying situations like this one? Doubt it.
I think you've got a point there, but also it's important to not discount that for a contract to truly be valid that there are 5 key points that have to be in place. (Note, IANAL)
1) Intention to create legal relations
2) An offer
3) An acceptance
4) Consideration
5) Capacity to agree
The issue with "click-through" TCs and other forms of agreements is that they do not have consideration, they cannot ensure capacity to agree, and they're presented to someone who doesn't have the intent to form legal relations.
Unfortunately, in some cases "clickwrap" and "shrinkwrap" EULAs and TCs have been upheld by the court system (for reasons unbeknownst to me), in others they've been put down. Recently, regarding the Zappos user agreement the courts determined that their "browsewrap" TCs were not valid. http://blog.ericgoldman.org/archives/2012/10/how_zappos_user...
The biggest problem with these types of agreements isn't that the law needs to change, it's that the courts are upholding things and establishing a positive precedent for things which are clearly not legal even to a layman. This is similar to the situation with software patents, where patent law clearly does not cover software, copyright does, but companies are having them issued anyway and the courts are treating them as valid.
So, yeah, we're lazy and we've developed habits of just clicking "Okay" or "Agree" to get that message out of our way so we can move on with our life, but that's because any reasonable person would not even remotely consider needing a contract to utilize their phone beyond potentially signing an agreement with the carrier. Most of the TCs on software are trying to use contract to remove rights you actually have under copyright law or to subtly get you to agree to giving up information or other rights you may have as a consumer. In many ways, it's arguable that in common case circumstances such as installing an app or using a phone or computer, it shouldn't be legal for you to even give these rights up. A bigger piece is that simply many of the people utilizing phones are underage, so cannot legally consent to a contract.
The EU has the "Unfair Contract Terms Directive", which means contracts which are just presented to you as a consumer are not always valid. It lists things are "unfair" and hence not binding. e.g. enablying the seller to alter the terms. When deciding if a contract term is fair, it must be decided on the side of the consumer.
falling on the side of consumers (as we mostly do here in the EU) isn't the right solution either. I don't think this is about a contract being fair. Some laws about legal agreements are ok, but they aren't the tool for this job. At least not in my opinion.
I think before you can determine if a contract is fair, you need to determine if a contract is even a contract. If a standard contract is "agreed" between some company (Apple, this hotel, etc) and all of their consumers and some unacceptably high number of those customers don't now the content of this contract, I think it should be considered what it is: nonsense on a piece of paper.
These contracts are so blatant that it doesn't even matter what the thresholds are or how they are determined. The way these "contracts" are set up to be agreed to by people who haven't read them is so flagrant, it's unmistakably contemptuous of the whole idea of an agreement.
This law refers to "A contractual term which has not been individually negotiated ... A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term ... if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. .. Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him."
Which I think is a fair balance. If a company presents you a big long standard contract that their lawyers due up 5 years ago, then it's not really a contract between 2 equals.
defines the principle of unfair:
- If a contractual term has not been
individually negotiated *and*
- the term causes significant imbalance
in the parties rights and obligations,
*then*
- the term is contrary to the requirement of good faith.
It seems UK law is trying to define the principle of "unfair contract" in terms of "good faith," an existing and longstanding principle in contracts. Makes sense, but I don't think this is the best approach. (a) It just leaves an opening for creating consumer protection rules regarding what is and sin't fair. (b) There's still no reason not to keep adding stuff to your TOS or whatever.
I think it would be better if the law just didn't recognise contracts that are clearly out of place and don't really represent and agreement between parties.
I think this is the huge difference between US and English law. While they're both rooted in the same corpus ('common law'), they're exercised very differently.
Where US law can be seen to lean heavily towards the letter of the law, English law leans heavily towards Intent - both the spirit of the law, and the intent of the involved partied.
This is also where a great deal of friction against EU lawmakers is created. The EU leans towards "legislate everything", whereas we trust our judges to properly apply terms such as "unfair", "good faith", etc.
I think this is commonly missed when reading into each others' laws - there exists not only different laws and different legal systems, but also differing legal cultures. And that last one is much harder to read into.
The whole setup is also about transaction cost; basically a legal cartel to standardize routine consumer transactions, reducing cost (of evaluating and constantly re-evaluating complex contracts for routine business) and risk for all parties.
Businesses on the other hand have few protections, and bullshit contract terms seem fairly common, eg I saw a contract that required 6 months notice in writing or it would auto renew.
"Policies designed to not be read need to be considered completely invalid."
I think this is key. The law assumes that contracts are a big deal for both parties, that they are relatively rare, and that they're given attention on both sides.
But it's hard to get through daily life anymore without signing a ton of contracts. Software update for your phone? Contract. Sign in to some random online service? New T&C I have to agree to i.e. contract. Pay for something with a credit card? That's a mini contract you're signing.
Now, in some cases there's no real excuse for not reading a contract. To take a random example, if you sign up for a two-year contract with a cell phone provider and you're given a stack of paperwork and you sign without reading through it first, I'm comfortable saying that's on you. This isn't something you do often and you have ample opportunity to read the thing first.
On the other side of things, Apple keeps tossing these gigantic contracts my way whenever I do much more than breathe. I'll literally get fifty or sixty pages of contract when trying to download a software update or just sign into the store after they made some random change to their T&Cs. Nobody reads these things. I know it, you know it, Apple knows it, and because of that they should be strongly limited in what they can do.
I think an important test for a contract should be asking the hypothetical question, "what if everyone who signed it read through it in detail first?" For something like buying a house, this would obviously change nothing. For a cell phone contract, it would change little. For random gigantic software EULAs and web site T&Cs and similar things, it would drive all the customers away. If having everyone read through it before signing it would break the process the contract was made for in the first place, the contract shouldn't be valid.
Statements like "we need new laws" are problematic, because they boil down to "we need completely new people". Laws are written by people--specific, finite, real people. If you tossed out every law book today, you would end up with the same laws tomorrow.
And that isn't an endictment of congress critters and judges. They are of us, selected by us. To say, "we need a new legislature" is to say "we need completely new people." They are the way they are because we have made and allowed them to be that way.
Now, I agree that the laws we have and the legislature we have are objectively bad. But I have come to admit it is because we have a bad culture. We live in a world trapped in a Prisoner's Dilemma over pillaging our neighbors.
I disagree, if you tossed out the law books you would get a very different set of laws. Laws have a long tradition inherited over thousands of years. Contracts is one of those traditions. It's a good tradition. It's just taken a bad turn, being applied badly to the wrong kinds of things.
Good point, we would end up with different laws. Probably wholly worse laws. They'd certain pay lip service to concepts of liberty, but there'd be so many disclaimers and emergency provisos that it wouldn't mean anything.
I'm not as pessimistic as you. I don't think we need revolutions, just a moderately substantial adjustment to laws which take the flashing signs of absurdities as evidence that some premise is incorrect. In this case, the premise to adjust is (imo) the definition of contract or agreement that's all.
Rather than all the consumer protection approach which is hairy and ambiguous, just leave contract laws roughly where they are and applicable only to things which are to some degree of accuracy real agreements.
If a company is informing you of the rules of a game which you have no control over, lets not call that an agreement. Those rules can be subject to as many or as few consumer protection laws and regulators as we like but taking the stupid "but they agreed to pay £100 for posting a bad review" argument completely out of the picture.
If a hotel has a "no breakfast after 10am" policy. That's fine. House rules. No need for a contract.
I think contracts signed without some sort of comprehension test having been performed should be considered suspect. This would have the effect of preventing things from being hidden in the small print, and making for much shorter (and probably more standardized) contracts.
"Also, the sooner "pull" payments become a rare exception, the better."
Credit card charges that are pull-based are generally a bad thing, but not all pull-based payments are bad for consumers. For example, the Direct Debit scheme in the UK requires the consumer to be notified 5 working days before payment is taken, and the consumer has the right to get a refund from the bank without dispute; it is then the bank's job to go and get the money bank from the merchant. This latter feature in particular is important, and should be implemented for credit card pre-authorisations as well.
I don't see how is that direct debit system better for consumers than what we have here in Portugal, where the consumer is the one initiating the debit authorization (using a code provided by the merchant).
Because it would be unfortunate if one were to accidentally forget to authorise one's mortgage payment to be paid for a few months, only to find oneself repossessed. Direct debit allows a regular bill payment to be forgotten about, but with the protection that you are informed well in advance of any changes (for instance if the mortgage interest rate goes up).
If your house gets repossessed after missing a payment, you have something very wrong with your legal system. Not even my $5 VPS gets repossessed after missing a payment.
The point is it gives you all the same powers with the added convenience of being able to passively approve payments. Active direct debit agreements can be viewed through banks' online banking services and you can cancel them with one click. I don't really see how your system is better for consumers.
Complaining about a "culture of liability" makes no sense in this context. The legal system doesn't create liability for posting a bad review--it just enforces the voluntary contract you made with someone agreeing to that restriction.
What you're actually asking for is the legal system to intervene and invalidate certain types involuntary agreements. Which I would agree with. What we live in is in fact a culture of excessive insulation from legal liability! 99% of all those "contracts designed not to be read" that the parent poster complains of, those TOS you have to agree to just to use hardware you paid for, those are designed to make you to sign away rights you have under tort law.
That's definitely a problem too, but I don't think that's the whole reason. I think this is an extrapolation of contracts which are a good thing where appropriate. An agreement between parties, ideally with input from both that everyone understands and agrees to.
Now, we make dozens of 10k word (or 100k word) agreements every week that no one understands. It would cost thousands or tens of thousands to understand them. You can't read them all and even if you did, you would find that being the odd one out in this regard left you unable to get a hotel room, phone or read a newspaper. So, we lean on standards, norms, consumer protection laws and to keep us safe from these damned contracts.
Common law (or my lay understanding of it) suggests that there is grounds for completely invalidating a "contract" which no one expects any one to read. If either party don't know what they're agreeing to, it's not a contract.
I'f you hand me a one page, large font bullet pointed list of things to agree to, that is something you expect me to read. If you hand me a 40 page small print book while I'm standing at a counter with people behind me, it's obvious what is going on.
> Blackpool is a classic example of a seaside resort that's been badly hit by cheap package holidays to the sun.
Partly. Other resorts have managed to reinvent themselves, but the perception I have is that our local tourism trade took things for granted, didn't innovate and assumed there'd still be millions of overnight visitors to cash in on.
It's a very parochial place and despite all our problems and examples like this popping up periodically, as a town we still seem to maintain a collective belief that it's a great place to live/visit and "everywhere has its problems", with Blackpool just being hard done to.
How did the proprietors ever think this was going to end well? The "victims" have been given airtime on the national breakfast TV show. Even if it is legal it wont take long for internet justice to ensue.
edit: actually, no need for internet justice, already there are 147 x 1 star reviews - the most recent stating "don't go there" and "lacking basic cleanliness"
I'm glad someone found this; I was really confused because I recognised the phrasing, and thought "I've read this story... but it was about wedding guests...?"
He's probably thinking of some similar situations in the US where certain types of clauses are automatically void. No court appearance needed, no waiting, no nothing. It's as if the clause never existed in the contract, no matter what people sign.
For an example of this, see non-compete clauses, for most types of employees in California.
EU doesn't exactly make law. They make more of suggestions. Some of the countries do the drastic opposite of the EU "laws", even if on paper they're saying they don't.
For example, many types of racial discrimination are technically illegal in many EU countries. But look at what actually gets enforced, it's unfortunately made to look like a huge joke.
> many types of racial discrimination are technically illegal in many EU countries. But look at what actually gets enforced, it's unfortunately made to look like a huge joke.
The problem with that specific topic is that it can be very difficult to prove discrimination; also, legislation can pave the way but it's up to people to actually walk it. It's the same in some US states, really, and elsewhere is usually much worse.
Generally speaking, EU Directives (which must be implemented in local state law) are respected, and they can be vigorously enforced when people appeal to them. Like all laws and tribunals, EU ones are not perfect (some countries just ignore contrary verdicts, preferring to pay continuous fines; and some bad local laws are not appealed against nor closely scrutinised), but they are better than the alternative anarchy. Most EU directives did an inordinate amount of good for "retrograde" countries (Italy, Spain, Ireland, Britain etc), but sometimes it takes a generation to appreciate changes in law.
> "EU doesn't exactly make law. They make more of suggestions."
(a) The EU can make "Regulations" which come into force as laws in each member state. But those are rare.
(b) ... The more common form is "Directive", and member states are legally obligated to implement into national laws. This is effectivly "EU law".
(c) ... membership of the EU, also requires membership of the Council of Europe, and European Convention of Human Rights, and European Court of Human Rights, who can make judgements against a member state to force them to do things.
Each country has it's own laws but I think they'd get their money back in most places including the UK. Usually if there's a credit card involved it does not get to court - the credit card company refunds.
Justicable I belive is the term you can put whtever you like in a contract say only two weeks holiday in the UK.
Even if you sign it that part of the contract will be considdred null and void - and you can efectivly ignore it as teh UK's stutory rights take precedence.
Their credit card company is going to refund that amount the second they review the claim. It will be a no-contest thing. Credit card companies fight for their customers and its generally the fastest way to reverse fraudulent charges like this one.
It probably isn't, but it's in that annoyingly small fee zone where it costs more to take them to court than it does to just accept the fine. I think in this case, they'll probably get the money back from their CC company though.
The hotel made a strategic error so no need for court.
Under the UK Consumer Credit Act, when a credit card charge of £100 (or more) is made, the credit card company becomes 'jointly and severally liable'. A charge for a bad review also falls foul of UK Fair Trading legislation which means the couple can pursue the credit card company for the unfair trade breach and reclaim their money that way. Credit card companies don't argue in these cases and refund pretty damn fast (from experience) and just charge-back the business (so they lose the £100 and have additional charge-back fees of around 25% added on top).
If the hotel charged £99.99 instead, it would be a very different story and would need the Trading Standards people at the local municipal council to take action. (They already stated they will be regardless of the refund since these are unfair trade practices.) A refund would happen but would take longer and may well need a local county court action.
But just reclaiming the money via credit card companies is probably easier.
I'm curious about why the people leaving one and two star reviews are not also sending reports to trading standards / environmental health. If the public areas are dirty I dread to think what the kitchens are like.
I knew about small claims court, but didn't realise it was as simple as an online filing. That's really handy to know! I had a similar issue with some £50 concert tickets that I'd bought earlier this year; cancelled the night before the gig and the promoter was being difficult about refunds. I probably still wouldn't have filed, but at least the threat would've prompted them to cough up quicker.
These kind of petty fines really annoy me, far more than a lot of major crimes, because people know exactly what they're doing when they pick a low amount - and they expect to get away with it. You see them all over the place, eg. change your ISP and they'll fine you £50 for not returning a £10 junk router that you have to return, instead of them picking it up.
The money is in an annoying zone where you are put off filing a claim because of the potential cost, not just in money but in time as well. You might still need to go to court over your small claim, which will take up a day and a lot of hassle, etc.
It's one of the reasons that parking tickets are only £30. You could contest them, but it's costing more in terms of your time than you'll recover monetarily, even if you prove the ticket invalid. Likewise with automated speeding tickets from cameras - you could contest it, but it's just too difficult for most people to be worth the risk. Whereas in countries like Switzerland or Finland, where they can have huge fines, I imagine they have a lot more court cases...
I'm not a lawyer and I'm going to appear to play the devil's advocate here, but bear with me and let's say it's not illegal for an agreement to contain such a clause. If it breaks no laws, then why is it illegal? Assuming you have signed an agreement for this knowingly (or at least they presented this agreement to you and it's fair to presume that you've read it before signing it). So what you would have to do is refuse to sign that. Maybe you'll have to find another hotel but you can leave a negative review pointing out this outrageous demand from this hotel. They can't charge anybody a hundred pounds and they get really bad reviews for it.
So basically I don't know what got into their heads when they thought this is a good idea, either. At the same time, though, I wouldn't be surprised if this is not an illegal clause per se. If they charge a hundred pounds for structural damage to their hotel, or theft of towels or so, it would make more sense, and if they consider a bad review to be damaging, it isn't even that far fetched. I think they should know better than to do something stupid like this at the end of the day, however.
Dunno about the UK, but in Germany "surprising" clauses in everyday contracts such as this with consumers are generally illegal. End of story. If this got as far as a court, case would be over in seconds. Read opening statements, have laugh, verdict, good day.
Also don't know which way the EU swings on this, my guess would be towards the German position.
Yup. The alternative is - expect all the clients to read small print on everyday contracts and interpret it correctly. That would be dumb and would slow economy considerably. Imagine hotel making the contract 200 pages long.
Staying for a night at hotel shouldn't require you to hire a lawyer.
What if you declare it up front, in big print. Really. I wonder how many people would still stay. Just put it right above the dotted line on the front page.
By signing this receipt and accepting the key to your room you agree you not place a negative review of this facility on any public accessible site.
The fact that most people would only look at the bottom line (i.e. price) doesn't mean that this wouldn't be a gross infringement of freedom of speech, and unfair trading to boot. Trading involves the possibility of goods not being up to par, and hence the customer complaining to a third party. As long as complaints are not libellous, there is no reason why they could be forcefully restricted.
Still not a chance. Big ink, flashing letters, PA announcements. Same as invisible ink. Courts have a very low opinion of people getting "tricky".
In Germany at least, for example, ALL Click-Through licenses are invalid (last I checked).
A US company I worked for had various (illegal in Germany) data tracking stuff activated. When I pointed this out, they just pointed to the license agreement. Morons. (It was a hardware/software combination, and you only got to the software a long time after you had bought the hardware).
IAL, and I could imagine this fee getting upheld in at least a few US jurisdictions (with the right judge), leaving consumers to rely solely on the Streisand effect to get satisfaction.
The classic notion of a contract as an expression of the compromises forged in a battle between two sophisticated, represented parties has been replaced by overlawyering, boilerplate, and clickwrap.
What's the solution? Hold consumers responsible for every detail of wordy documents they didn't have the time to read, much less negotiate? Make companies bear the costs of every complaint - real, imagined, or fraudlent - a consumer can dream up? Companies can be cheap and sneaky, and consumers can be petty, stubborn, and stupid.
> Assuming you have signed an agreement for this knowingly (or at least they presented this agreement to you and it's fair to presume that you've read it before signing it)
In the EU, not all contracts that you read and sign are legal, e.g. if it's a contact you can't influence, and it significantly alters the balance of rights to your deteriment.
"Unreasonable" terms may be illegal at common law. And the unfair contract terms act limits the ability to insert unusual contract terms without drawing people's attention to them, especially in contracts where they haven't recieved independent legal advice.
This happened in UK. In Europe 100 miles is a long way. There is another country 80 miles away from where this happened, and a different country 111 miles away.
In many parts of Europe (among the countries I've worked) the written word of contracts is worshiped as the ultimate authority. What's "the right thing to do" means nothing by comparison. You sign, you're bound by it, unless you put up a massive legal fight. Not only that, but signed contracts are expected to be used vastly more than in the US.
It's a bit of a culture shock when you see the sharp difference in this respect from how the US treats contracts, at least it was for me.
On both sides you have people saying that the business world will collapse if you treat contracts the way that the other side is treating them. I'll refrain from saying which side I think is right, but I guarantee you that these differences are strong and real.
I'm not sure what countries you've been in, but British culture is definitely not like that.
B2B transactions do have more emphasis on following the rules of the contract, as two businesses are seen as being on a more "even playing field".
B2C transactions, however, rely heavily on consumer protection legislations (Sale of Goods Act, Supply of Goods and Services Act, Unfair Contract Terms Act), which recognise that most consumers do not read contract terms at all. In addition, there are a number of regulators and public bodies whose sole purpose is to provide free legal advice, and to fight cases on behalf of the consumer. Hell, there's a ton of morning television dedicated to hunting down dodgy builders and shaming them publicly.
My point is that contracts aren't as integral to everyday life as you assume, and most people will freely sign them in the knowledge that any bad terms are mostly unenforceable.
Indeed. Also, under British law, a contract is not enforcible if the person who accepted a signature knows that the contract's preconditions weren't met - for example, if you sign a safety waiver which says "I declare I have not been drinking" and you clearly have, the waiver is void and the fairground are up for damages if you hurt yourself on their ride.
Thanks. I flagged yours too. I want the mods to pay attention and find a way to reduce the hostility of Hacker News.
Several people I know in real life have told me that they perceive Hacker News comments as very hostile, so I know it's not just me. Nothing significant has been done to try to correct it.
We care about this a lot, pay close attention, and have been working hard on it.
> Nothing significant has been done to try to correct it.
That's a misperception, presumably because perceptions lag even after changes occur. But one needn't look far to see some: two inappropriate comments upthread have been killed by user flags and clearly marked as such.
Sidepoint: ALL contracts I've ever signed, both in Europe and in US, and across oceans, have a clause that says "If anything in this contract was missed or is in violation of the law, the law prevails. The contract is ruled by laws of X country"
And really, both here and there, contracts are treated more like guidelines than actual rules. What you agree on with a handshake matters far more. Especially with contracts under 5 figures because enforcing them would be way too much hassle and in case anything goes wrong it's easier to just write them off as cost-of-doing-business and move on.
have a clause that says "If anything in this contract was missed or is in violation of the law, the law prevails. The contract is ruled by laws of X country"
Yeah, I've also seen this in many contracts. It's silly. The law prevails whether you write it in the damn contract or not. That's why it's The Law. (You can also try the opposite test: "If anything in this contract is in violation of the law, this contract prevails over the law" --> yeah, right)
It's not really silly at all. It is there for two reasons.
(1) The law requries it to be stated in contracts [at least partially because of (2) below].
(2) Case law develops and can mean that something in a contract was previously enforceable but due to a test case or other development, it is no longer enforceable. Rather than companies having to watch every test case go through the courts and have lawyers rewrite contracts every few weeks just in case something needs updated, the catch-all allows for a more reasonable update cycle with rewrites only happening when there is a significant change to legislation or a number of cases has resulting in significant numbers of terms being invalidated. Pending the rewrite, the term makes it clear any updates to legal interpretation are honored.
In the EU there is also a choice of venue available to consumers so often the 'rules of country X' are not so readily enforceable for companies when they deal with consumers across EU borders. But that's a whole other complicated area.
Actually, the clause usually says that if any particular clause in the contract is deemed invalid under law, then the rest of the clauses are not also automatically invalidated. Like you say, stating that the law takes priority over the contract is a redundant statement.
Actually what most of those clauses are about is stating that only the contractual clauses that are inconsistent with the law are to be ignored, as opposed the entire contract being considered void.
It is true for business contracts that the written word is considered the ultimate authority. The principle is called 'caveat emptor' which can be translated to 'buyer beware'; essentially a business that enters into a contract is expected to read that contract and consult legal advice.
That said, there is protection for consumer contracts. In the UK you have the Unfair Contract Terms Act that protects consumers against businesses attempting to discharge liability to negligence. Europe wide you have the Unfair Terms In Consumer Contract Regulations which prevents businesses from inserting onerous terms into contracts with consumers that are not 'individually negotiated' (eg. almost every contract that a consumer signs without using a lawyer).
On the whole, freedom of contract (a characteristic feature of Anglo-American law since that body of law was located only in England) is a feature rather than a bug. Most of what we do each day in Britain, in the United States, and these days around much of the developed world is regulated by private agreements--that is, contracts--rather than by legislation or administrative regulations. That's a good thing. Parties to contracts can dicker until they reach a mutually agreeable deal, or each party can avoid making the deal at all by doing business with someone else.
Contracts have effect in influencing human behavior partly because once in a while a court will enforce a contract against a party trying to weasel out of the contract. But when courts get involved, general constitutional, statutory, and administrative law is brought to bear on the terms of the contract. A court may be very reluctant to enforce a term of a contract that doesn't allow a customer to complain about a company's service. That could be regarded as "against public policy," and public policy can be a judicial ground for NOT enforcing a contract. Moreover, a contract binds its parties, but doesn't bind outsiders who didn't enter into a contract, so a news organization like the BBC can report, "Slimy company attempts to sue its customer for letting consumers know that the company gives bad service," and the contract will not stop that. Parties to form contracts often ask the moon, but the party that drafted the contract language will usually have the terms construed in favor of the OTHER party if the contract is litigated. So I don't worry about this. I look over form contracts as I sign them (as, for example, when I buy an airline ticket or check into a hotel or rent a car) but I also stay aware of actual business practice as experienced by consumers as I buy products and services as a consumer. My most powerful recourse, always, is not to give a slimy company any repeat business, and to tell all my friends through every channel I have that I did (or did not) like a particular company's product or service. Anyone can do the same.
AFTER EDIT: By the way, this is an international news story that I heard on the radio while I was just on a morning drive here in Minnesota, and the latest update is that the hotel has agreed to refund the "fine." I'm trying to find a news story on the Web that verifies that.
Many of these small hotel and B&B owners run their businesses as a hobby or retirement plan, which often doesn't quite pan out as the passive income scheme they were anticipating. They don't cope with the responsibilities that entail and can't compete with professional hoteliers who understand visitors slightly better, so they end up chasing the bottom end of the market (it's not unusual to see rooms offered for £10/pppn. The lowest I've seen is £7/pppn).
I guess when someone has a small business and also happens to be an idiot, chances are slimer that a smarter business partner will point out an idiotic idea, so his idiocity has the chance to shine in all it's glory at every instance.
I concur that something needs to be done about these consumer Terms-of-Service type contracts.
There's a contract system in place, and it may work fine for people who have the incentive and the resources to look over them (mergers and acquisition deals, house purchases), but a lot of the time the document is very long and written in legalese.
How many people are really going to hire a lawyer to read their Apple Store or World of Warcraft terms? Writing a hugely lengthy contract is simply a way to discourage you from reading it, and then pretending that you've agreed to whatever the terms are. I guess there's some help from the legal system - ridiculous clauses are thrown out - but that doesn't address the fact that you are discouraged from reading about relevant information.
I think someone must have written a post about how long it would take to just read the everyday ToS type docs that we're presented with. And South Park did an excellent episode about this (The Human CentiPad).
I think this is the place I stayed when I went to see Bob Dylan play in Blackpool 2013. It wasn't too bad, Blackpool is a sh*tehole anyway what do you expect. Dylan was great though, best night of my life.
HN has always said that there are two types of interesting
i) intense but shallow
ii) deep
and that intensely shallow topics should be avoided where possible.
I'm really bad at this. I comment on too many topics that are intensely interesting when I should just ignore them. (I do however try to upvote all the interesting and technical stuff).
Which amount to "whatever piques one's intellectual curiocity" and "whatever good hackers like". Apparently this piqued HN users intellectual curiosity and they like it.
Besides an intelligent person can have an intelligent discussion about any topic, even Kim Kardassian. And the post is in final analysis about policy, freedom of speech, adapting to the digital age, etc.
While I wish your argument were correct, it's not. The flaw is in the inference voted for → was intellectually interested.
A model that appears to fit the data [1] is that multiple kinds of interest drive voting, and intellectual interest is not the most powerful one. This is the weakness of the story-voting mechanism. It is why, on a site that values intellectual interest, the vote signal must pass through other filters, like flagging and moderation.
>> Which amount to "whatever piques one's intellectual curiocity" and "whatever good hackers like"
It only amounts to that if you completely disregard this part: "Off-Topic: Most stories about politics, or crime, or sports, unless they're evidence of some interesting new phenomenon. Videos of pratfalls or disasters, or cute animal pictures. If they'd cover it on TV news, it's probably off-topic. "
just absurd... the government should take action on this and the consumer rights. Just close down the hotel and get the managers to the court for scam.
I like to think it's "These small business owners got bad reviews. Here's their stupid way of dealing with it. Don't make the same mistake. What tips do you have for handling negative customer feedback or reviews?" -- which would be on topic. Unfortunately it ends up as being "wow, look at these idiots", so you are probanly right.
Trip Advisor is a tech startup. The situation couldn't have occurred without a service like them. The ways businesses try to deal with the ramifications of online reviewing is probably interesting to anyone thinking about innovating in that space.
So a nearly 15 year old company with a billion dollar revenue still qualifies as a startup?
>> The situation couldn't have occurred without a service like them
Freedom of speech infractions have occurred for way longer than online services have existed.
So if someone tweets something stupid/political it should be posted on hackernews as well, simply because tweeting wasn't possible prior to twitter? Or what if someone reacts badly to something on tumblr, is that relevant for hn'ers as well in case they are trying to innovate in the micro-blogging space?
Unless i'm understanding you wrong... Trip Advisor has democratised hotels and yeh people had freedom of speech but not widely accessible freedom of speech. Without Trip Advisor it would be much harder to find someone's opinion on a specific hotel.
Maybe consumers should be democratised too? Shall we assess the quality of a consumer? Do they piss up the hotel walls or do they tidy up before they leave?
Please don't submit comments complaining that a submission is inappropriate for the site. If you think something is spam or offtopic, flag it by going to its page and clicking on the "flag" link. (Not all users will see this; there is a karma threshold.) If you flag something, please don't also comment that you did.
What part of "If you had to reduce it to a sentence, the answer might be: anything that gratifies one's intellectual curiosity." didn't you understand?
This part apparently: "Most stories about politics, or crime, or sports ... If they'd cover it on TV news, it's probably off-topic."
But forgive me, I am, unlike you, not the type of person who finds a story about a Hotel manager behaving badly particularly intellectually gratifying.
>But forgive me, I am, unlike you, not the type of person who finds a story about a Hotel manager behaving badly particularly intellectually gratifying.
Yeah, because it's just about a guy behaving badly, might as well been about a bar brawl. It's not a story that doesn't have connections to how some businesses perceive the internet, internet "mob" justice, antiquated laws, free speech and such, right?
You seem to struggle with the fact that your personal interests and the HN submission guidelines diverge. Even though the story of a Hotel manager levying unlawful charges against his guests seems to pique your intellectual curiosity immensely, it still doesn't mean that it adheres to the submission guidelines. More specifically this part of it: "Off-Topic: Most stories about politics, or crime, or sports, unless they're evidence of some interesting new phenomenon. Videos of pratfalls or disasters, or cute animal pictures. If they'd cover it on TV news, it's probably off-topic"
Also, your use of a double negative in the sentence "It's not a story that doesn't have connections to how some businesses perceive the internet, internet 'mob' justice, antiquated laws, free speech and such, right?" makes it far less sarcastic than you probably intended it to be.
We need new laws. Not the vague hodgepodge we have now. Policies designed to not be read need to be considered completely invalid. This credit card charge should be treated like any merchant taking a card and then charging £100 more than expected. Fraud, theft, some mild form of racketeering, whatever that falls under.
I think the most common abuse of this sort is "out of contract" telecom charges where using 2X the contract number of minutes or data could result in over 10X (often over 100x) the cost of the original contract.
I'm not sure how exactly the laws need to work, but there is obvious stretching of the systems well past the point of ridiculous. An iphone privacy policy or a hotel "sign this" agreement is not free actors contracting freely.
Also, the sooner "pull" payments become a rare exception, the better. If hotels need some sort of escrow, then it should be an escrow.