[netcan]

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.

[madaxe_again]

On the note of bullshit contracts...

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.

[mortov]

You need a better lawyer.

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. ;-) ]

[sjehay]

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.

[andrewfong]

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.

[jammycakes]

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.

This is why non-trivial companies have HR departments. The way they get round this one is by having clear disclaimers on their jobs/contact pages repudiating any liability for unsolicited CVs. Here are a couple of examples that I've come across - KPMG: http://www.kpmgcareers.co.uk/experienced-professionals/agenc... Cargill: http://www.cargill.com/careers/notice-staffing-agencies-plac...

[JonnieCache]

Really? A judge is actually ordering you to cough up? Can you share any more details?

[madaxe_again]

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.

[mortov]

sender domain please ? I need to update my block list on my mailservers to protect my customers (and myself).

There must be public links/references if this is their business model - care to share those ?

Also, what test cases ? Those are public record in the UK - they are no liablity issues in pointing to matters of public record/factual court records.

[joopxiv]

A contract doesn't mean anything unless you actually sign it. Which I understand you didn't.

[bsg75]

If you are bound by contracts that you received without requesting or signing, its time to leave the UK.

If that "business model" is allowed to proceed, what is to stop the contract trolls from suing everything into oblivion?

[ensignavenger]

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.

[perlpimp]

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.

[LunaSea]

Just forward their emails to the UK government and wait to see if they will cough-up money too.

[rasz_pl]

sounds like you need a better lawyer

[netcan]

Wow. Infuriating (and expensive).

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.

[ajuc]

UK is in EU, so there are illegal clauses in contracts and I think that should be covered by these (but IANAL).

[icebraining]

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?

[netcan]

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.

[askinakhan]

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.

Sorry for typing so much, got bored.

[tristor]

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.

[rmc]

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.

http://ec.europa.eu/justice/consumer-marketing/rights-contra... http://eur-lex.europa.eu/legal-content/EN/ALL/;ELX_SESSIONID...

[netcan]

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.

[rmc]

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.

[netcan]

Interesting. Thanks.

Some more context:

   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.

http://en.wikipedia.org/wiki/Unfair_Terms_in_Consumer_Contra...

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.

[soneil]

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.

[newuser88273]

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.

[justincormack]

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.

[mikeash]

"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.

[moron4hire]

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.

[netcan]

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.

[moron4hire]

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.

[netcan]

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.

[seanmcdirmid]

You can totally rent a hotel room without a credit card if you pay up front, they might require a deposit.

[iolsantr]

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.

[acabrahams]

"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.

[icebraining]

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).

[mnw21cam]

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).

[icebraining]

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.

[ubercow13]

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.

[binarymax]

We live in a culture of liability and a culture of blame.

This is a symptom of legal liability running the governments and corporate world.

Change the culture and this problem will go away. Not an easy task.

[rayiner]

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.

[netcan]

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.