It's just that when we're talking about consumer contracts for such small quantities of money it's hard for a consumer to justify fighting anything at all. In a lot of ways this is the primary problem, not the contracts themselves. You'll never stop companies from trying to do bad things, but the way they can siphon, say, 50 cents worth of annoyance and bad practices away from 100 million people is the relatively new thing that we have no way of handling in our currently super-heavyweight legal system. We don't have anything suitable for dealing with that. Even a class-action lawsuit is hard to justify in such a case, the lawyers would eat 250% of the winnings.
I would say that this is hardly even worth worrying about, if the biggest problem someone has is 50 cents extra to a company you are living a charmed life, except that it at times feels like it's every single company I deal with doing this to me, so it adds up to something quite large. Everybody is getting shaved like this by a large number of companies. But it's hard to deal with, there's no single large locus you can focus on.
a) much lower tolerance for this kind of thing - if a company does this, people will consider them scammers, so there is a high cost to repeatedly trying tricks like this
b) the Verbraucherzentralen, consumer rights organizations that can sue on behalf of all consumers (not in the sense of a class action suit, but in the sense of making a company stop an abusive practice). They also generate press releases, leading to the above-mentioned reputational damage.
I'm still disappointed that obvious scams (e.g. hiding a subscription that very few customers would knowingly agree to in the fine print) are handled through this system, instead of the criminal justice system. You still need the civil system for the less egregious cases, but if you send the obvious ones to jail, fewer will try to "dance around the line".
Edit: Completely forgot - your competitors can also sue you/get an injunction to stop you from engaging in unfair business practices.
Where I live now, Hong Kong, even oral contracts have value, if it's written you re gonna give your kidney, you better book a surgeon. We cant regret a contract even the first week (they tried to pass a bill on that, it was rejected because inconvenient for companies...).
Surprisingly though, it makes for much more careful people, who care for, and respect, contracts. In France, you dont even have to pay rent, in HK, it's a kick in the ass and your stuff thrown aways a day after the missed deadline.
Legislation should be written so that litigation wouldn't be required to uphold consumer rights.
Imagine similar concept to GDPR, but for consumer rights that must be adhered to, or be fined. You cannot sign away your rights under GDPR, and you automatically get those rights by virtue of being based in Europe.
Weirdly enough, this somewhat works in Germany. Sure, I know Lawyers who say that pretty much any T&C has terms that are invalid under this law but society has not collapsed, companies don't get sued constantly and the most egregious terms get ruled against. Sounds nice?
Of course, Germany/EU is a different legal environment than USA so this does not apply 1:1.
Edit: Completely forgot - your competitors can also sue you/get an injunction to stop you from engaging in unfair business practices.
Sites would then need to decide how many variations to enact, knowing full well every extra one reduces signups.
I'd rather have "ideological" bills that explicitly say companies can't take the piss, empowering judges to throw the book at them with liberal interpretations.
Note I'm not completely contrary to a legal intervention in the matter (the EULA concept must die); just that it makes more sense to put in law that companies must not take the piss, not that they can take the piss as long as they follow the letter of some standard form. Then they can absolutely follow with standard guidelines that are somewhat advisory, as a way to speed up enforcement; but it's important that the law establishes overall principles, so that it's more future-proof.
If I give you a software copy with non-standard license, courts here won't uphold such licenses if you don't point out it's non-standard and in what ways. Because the consumer can't be expected to read and understand every legal contract they have to sign. They aren't lawyers, after all.
Software development is the side where I'd expect the most slow-down (rather than EULAs) but if anything, I think standardisation removes friction from innovation — I'm much more likely to adopt your lib for example if you tell me it's MIT licensed rather than something you've written something a bespoke library for.
Similarly, imagine if a new start-up creates a new Alexa competitor, say — I'd much prefer if they said "we treat your personal data as standard, under this commons licence. Then, we also have some niche requirements that are A/B/C and this is how they explicitly work", rather than pages long TOS that I need to go through with a fine-tooth comb to see if anything has been snuck in.
My old boss described BGB as a masterpiece, and the deeper I dive in German bureaucracy, the more I agree.
* ban mandatory arbitration
* ban “tax recovery charges” on top of advertised prices
I think hidden charges are probably prohibited in a separate law, but basically if you see the price that's the price you pay.
Actually, here it is https://www.gesetze-im-internet.de/pangv_2022/BJNR492110021.... - Google Translate:
(1) Entrepreneurs who offer goods or services to consumers or who advertise goods or services to consumers by stating prices must state the total prices. [...] (3) If a price is broken down, the total price should be highlighted.
(And that "should" is a "shall")
https://www.legislation.gov.uk/primary+secondary?title=Unfai...
Also a general legal principle that the terms of a contract are interpreted in a way least favourable to the party making the offer where there is doubt as to the interpretation.
Doesn't this law prevent startups from developing innovative business models even when they are being upfront about it?
> (1) Provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. An unreasonable disadvantage can also result from the fact that the provision is not clear and understandable.
So if the novelty of the startup is an unreasonable disadvantage to the customer, it would be illegal. Which sounds good to me.
It does create uncertainty, and sometimes clauses get declared invalid years later and customers get bitten by statutes of limitations if they didn't sue themselves, but these cases are also really expensive for the companies so it's in their interest to not get too creative.
In practice, it seems to work really well. I'm always astonished how much more on edge I have to be in other countries when agreeing to anything. In Germany, most of the "legal scams" (e.g. subscriptions hidden in fine print) don't exist, or are really easy to get out of.
It can be pretty subjective, but it often gets clarified with enough common law precedent (which can be amended with a new law if it becomes abused/unfair/odd).
The opposite is also interesting to observe: In common law countries the written law also becomes more and more fine grained limiting jurisdical law making.
Germany has an explicit rule like that (§ 305c BGB): terms that are so unusual that the counterparty didn't have to expect them are null and void, and any ambiguities are interpreted against the side using reusable T&C's. Terms are further invalid (§ 307 BGB) if they unfairly disadvantage the other party against good faith etc.
The real meat starts in 308 and following, explicitly banning many terms - for example arbitration requirements (309 item 14).