|
Not stupid questions at all. I'm not entirely sure of the best way to answer this, as the internal quoting is getting messy. Here are my initial thoughts, though: In a perfect world, maybe we would not need contracts. Certainly not so many. For low risk and low volume agreements, like your skating rink membership, maybe a contract is not helpful. Although I would be interested to know what happens this winter if a pandemic means the skating rink shuts down. Should the rink reimburse customers who only got partial use out of their membership? There are statutory protections for service providers, but they do not cover everything. For example, they do not give the service provider recourse against the user for their bad actions. They also do not address the service provider's IP, nor do they address licenses from the user to the service provider. By "feedback," I meant suggestions for changes, like if you told Facebook about a new feature that you would like to see but then sued them if they built that feature. Or if you sent them an email they never saw but then they implemented the feature. I guess it boils down to three big points:
1. Litigation is nasty and expensive, even if you are totally in the right. It is expensive to go before a judge or jury to say "This user did awful things, so I banned them and did not provide a refund. Here's what they did and why we kept their money." It is much cheaper to cut it off early with a motion to dismiss or motion for summary judgment by saying "This person violated Section 7 of the TOS, so I terminated in accordance with Section 8."
2. Lawyers are hired to look out for their clients' interests. It is their duty to their client, and they can be sued for malpractice if they do not. We generally agree that this is a good thing, I think. But it is a risk to the lawyer, not just the business, if the lawyer leaves a lot of issues open.
3. Your point about legislation is interesting. However, you could approach from the other direction as well, and have legislation that says certain liability cannot be limited or certain actions cannot be taken by businesses regardless of contract. This is what we do now and arguably could/should do more, and it has the added benefit of not making lawyers act out of their clients' interests. I don't expect this to be very satisfying, but hopefully it at least puts this all in a bit of context. |