4 ms·

Is there ground for legal action, particularly if you depended on this? It seems like a contract of sorts, and if any of their sales people ever assured anyone

by donatj 4y ago

Is there ground for legal action, particularly if you depended on this? It seems like a contract of sorts, and if any of their sales people ever assured anyone it was "free forever" I think that becomes a verbal contact.

emacdona 4y ago
IANAL, but: 'If only one party offers consideration, the agreement is a "bare promise" and is unenforceable.' [1] [1] https://en.wikipedia.org/wiki/Consideration_in_English_law https://en.wikipedia.org/wiki/Consideration_in_English_law
- jxf 4y ago
  Consideration doesn't have to be money. Facebook doesn't charge you money and nevertheless has enforceable contracts.
  - fsckboy 4y ago
    what contract terms can you enforce against Facebook?
    - jxf 4y ago
      For example, Facebook has been sued multiple times for breaking terms in which they promised not to provide data to third parties without your consent.
    - heffer 4y ago
      Depends on your jurisdiction. In Germany, for example, a court has recognized that Facebook enters in a contractual relationship with you when you register on the platform. As such, Facebook agrees to store and let you access your information on the platform in exchange for the permission to use that data for its own purposes. The highest court in Germany (BGH) confirmed this in a court case that Facebook lost where parents were denied full access to the Facebook account of their deceased daughter (they were only allowed to view the memorialized profile but not log in and read the chat messages, for example). The court found that the parents rightfully inherited the contractual relationship with Facebook in its entirety and as such had to be given access to the data that Facebook agreed to store and make accessible to its user. Full ruling available here (in German): LG Berlin https://openjur.de/u/870262.html https://openjur.de/u/870262.html, which was appealed by Facebook and then went to the BGH (highest court) which ruled in favour of the parents: https://openjur.de/u/2110135.html https://openjur.de/u/2110135.html Edit: Added links and distinctions between the different courts at the end.
wmf 4y ago
There's no consideration though.
- heartbreak 4y ago
  That’s debatable. Not all consideration is obvious.
- blagie 4y ago
  There is. The goal of the "free forever" is to (1) exposure / publicity (2) lock-in (3) ecosystem / API integrations (4) eyeballs (5) customer counts for investor decks (6) etc. Consideration doesn't have to be financial.
  - dougall 4y ago
    Really? Is there case law to this effect? These things happen, and have value, but I wouldn't have considered them as "given as a quid pro quo" or "mutual promises".
    - seabass-labrax 4y ago
      This is a case in which the plaintiff claimed that the other party in a very large housing development contract went back on the implied promise of seeking planning permission, and it was ruled in the plaintiff's favour due to this: > Thus, it seems to me that the content of the obligation of utmost good faith in the SPA was to adhere to the spirit of the contract, which was to seek to obtain planning consent for the maximum Developable Area in the shortest possible time, and to observe reasonable commercial standards of fair dealing, and to be faithful to the agreed common purpose, and to act consistently with the justified expectations of the parties. I do not need, it seems to me, to decide whether this obligation could only be broken if QD or CPC acted in bad faith, but it might be hard to understand, as Lord Scott said in Manifest Shipping how, without bad faith, there can be a breach of a "duty of good faith, utmost or otherwise". https://www.casemine.com/judgement/uk/5a8ff77660d03e7f57eac98a https://www.casemine.com/judgement/uk/5a8ff77660d03e7f57eac9...
blagie 4y ago
Yes. It does not become a "verbal contract," but the concept is promissory estoppel. Look it up. If you make a promise, and I rely on that promise, and I suffer financial loss, you're liable. It's a good idea too. If you promise that a plan will be free forever, people should be able to rely on that promise. You might get beta tester, promoters, or whatever you want. If those people stop being useful to you, you can't just throw them on out on their bums. You're hosting their data, there's a cost to migrating that data away. If they've integrated with your APIs, it can be a high cost. If that what you'd like, promise "free" but not "free forever." It almost never makes sense to sue -- it's just not worth it -- but a business which breaks a "free forever" promise is probably breaking the law, and in the era of the internet, is almost definitely breaking the law in some jurisdiction.
- vel0city 4y ago
  In many jurisdictions contracts can't actually be "forever" though. They need to have some kind of possible end state.
  - differentView 4y ago
    So you're saying I may be able to get out of this contract I have with my wife.
    - vel0city 4y ago
      No, it has a defined end state, when someone dies. It's not a forever contract.
nocoiner 4y ago
I’m a lawyer. I think a reasonably competently drafted terms of service could obviate most legal exposure. In the event that a promissory estoppel cause of action was established (like other posters have, I think, correctly noted, but which would also be an expensive affirmative burden to prove in court) then the plaintiff would still have to prove damages. And what is that, $10 per month per user for the affected period? And I don’t think “forever” is an enforceable affected period. So short answer, probably no practical legal remedy imho.
- j16sdiz 4y ago
  I guess you can at least claim the cost for migrating off the platform, no?
  - nocoiner 4y ago
    Quite possibly. But not certain; and quite likely not with the cost of lawyer bills and court fees to get to that point (to say nothing of the distraction that would cause to the business and/or key executives).

by donatj 4y ago

emacdona 4y ago

IANAL, but: 'If only one party offers consideration, the agreement is a "bare promise" and is unenforceable.' [1] [1] https://en.wikipedia.org/wiki/Consideration_in_English_law https://en.wikipedia.org/wiki/Consideration_in_English_law

jxf 4y ago
Consideration doesn't have to be money. Facebook doesn't charge you money and nevertheless has enforceable contracts.
- fsckboy 4y ago
  what contract terms can you enforce against Facebook?
  - jxf 4y ago
    For example, Facebook has been sued multiple times for breaking terms in which they promised not to provide data to third parties without your consent.
  - heffer 4y ago
    Depends on your jurisdiction. In Germany, for example, a court has recognized that Facebook enters in a contractual relationship with you when you register on the platform. As such, Facebook agrees to store and let you access your information on the platform in exchange for the permission to use that data for its own purposes. The highest court in Germany (BGH) confirmed this in a court case that Facebook lost where parents were denied full access to the Facebook account of their deceased daughter (they were only allowed to view the memorialized profile but not log in and read the chat messages, for example). The court found that the parents rightfully inherited the contractual relationship with Facebook in its entirety and as such had to be given access to the data that Facebook agreed to store and make accessible to its user. Full ruling available here (in German): LG Berlin https://openjur.de/u/870262.html https://openjur.de/u/870262.html, which was appealed by Facebook and then went to the BGH (highest court) which ruled in favour of the parents: https://openjur.de/u/2110135.html https://openjur.de/u/2110135.html Edit: Added links and distinctions between the different courts at the end.

wmf 4y ago

There's no consideration though.

heartbreak 4y ago
That’s debatable. Not all consideration is obvious.
blagie 4y ago
There is. The goal of the "free forever" is to (1) exposure / publicity (2) lock-in (3) ecosystem / API integrations (4) eyeballs (5) customer counts for investor decks (6) etc. Consideration doesn't have to be financial.
- dougall 4y ago
  Really? Is there case law to this effect? These things happen, and have value, but I wouldn't have considered them as "given as a quid pro quo" or "mutual promises".
  - seabass-labrax 4y ago
    This is a case in which the plaintiff claimed that the other party in a very large housing development contract went back on the implied promise of seeking planning permission, and it was ruled in the plaintiff's favour due to this: > Thus, it seems to me that the content of the obligation of utmost good faith in the SPA was to adhere to the spirit of the contract, which was to seek to obtain planning consent for the maximum Developable Area in the shortest possible time, and to observe reasonable commercial standards of fair dealing, and to be faithful to the agreed common purpose, and to act consistently with the justified expectations of the parties. I do not need, it seems to me, to decide whether this obligation could only be broken if QD or CPC acted in bad faith, but it might be hard to understand, as Lord Scott said in Manifest Shipping how, without bad faith, there can be a breach of a "duty of good faith, utmost or otherwise". https://www.casemine.com/judgement/uk/5a8ff77660d03e7f57eac98a https://www.casemine.com/judgement/uk/5a8ff77660d03e7f57eac9...

blagie 4y ago

Yes. It does not become a "verbal contract," but the concept is promissory estoppel. Look it up. If you make a promise, and I rely on that promise, and I suffer financial loss, you're liable. It's a good idea too. If you promise that a plan will be free forever, people should be able to rely on that promise. You might get beta tester, promoters, or whatever you want. If those people stop being useful to you, you can't just throw them on out on their bums. You're hosting their data, there's a cost to migrating that data away. If they've integrated with your APIs, it can be a high cost. If that what you'd like, promise "free" but not "free forever." It almost never makes sense to sue -- it's just not worth it -- but a business which breaks a "free forever" promise is probably breaking the law, and in the era of the internet, is almost definitely breaking the law in some jurisdiction.

vel0city 4y ago
In many jurisdictions contracts can't actually be "forever" though. They need to have some kind of possible end state.
- differentView 4y ago
  So you're saying I may be able to get out of this contract I have with my wife.
  - vel0city 4y ago
    No, it has a defined end state, when someone dies. It's not a forever contract.

nocoiner 4y ago

I’m a lawyer. I think a reasonably competently drafted terms of service could obviate most legal exposure. In the event that a promissory estoppel cause of action was established (like other posters have, I think, correctly noted, but which would also be an expensive affirmative burden to prove in court) then the plaintiff would still have to prove damages. And what is that, $10 per month per user for the affected period? And I don’t think “forever” is an enforceable affected period. So short answer, probably no practical legal remedy imho.

j16sdiz 4y ago
I guess you can at least claim the cost for migrating off the platform, no?
- nocoiner 4y ago
  Quite possibly. But not certain; and quite likely not with the cost of lawyer bills and court fees to get to that point (to say nothing of the distraction that would cause to the business and/or key executives).