5 ms·

> are we benefitting as a society because of this? Arguably yes, though indirectly: society benefits from having a legal system that upholds contracts, even if

by SEMW 11y ago

> are we benefitting as a society because of this? Arguably yes, though indirectly: society benefits from having a legal system that upholds contracts, even if one of the parties later changes their mind. Or to put it another way - the harm to society of enforcing a ruinously bad bargain against one bank is possibly less than the harm that would be caused by the precedent that banks can sometimes wiggle out of bad bargains they make.

peteretep 11y ago
Maybe. Certainly in the UK there are many cases where "unfair" contracts can't be enforced, though, which presumably stays as law because it is seen to be beneficial.
- jessaustin 11y ago
  Beneficial to whom? I won't pretend to know anything about the UK, but in those places I've lived, any time the law gets "complicated", it's because someone wealthy has an interest in it being so.
  - SEMW 11y ago
    Would you mind having a read of, say, UTCCR[0] and let me know what wealthy interests you believe it serves? Here's the text: http://www.legislation.gov.uk/uksi/1999/2083/made http://www.legislation.gov.uk/uksi/1999/2083/made . As far as I can tell its effect is to tilt the balance strictly in favour of the consumer, but I'd be interested if you see something I don't.
    - jessaustin 11y ago
      I hesitate to comment on another nation's laws, because if it works for them I'm glad (motes and beams, etc.), but ISTM "shall not be binding upon the consumer" understates a great deal of legal procedure, nearly all of which would be increased business for the tort bar. (Which, again, may be less of a problem for other nations than it is for us.) If 100 consumers feel a contract term is unfair and so decline to meet their obligations, the firm will file a suit against e.g. the 20 least likely ones to contest rather than settle, which is good for the firm's attorneys (or is it barristers?). Etc. Eventually a consumer will contest the suit under the provisions of this law. That will entail more court business. In anticipation of this rigmarole, this law was probably a great one-time boost for those who rewrite contracts for purposes of risk-management. It certainly wasn't welcomed by small shopkeepers who enter into relatively simple contracts with their customers (e.g. to purchase an expensive item on terms). To compensate, such firms might have told their customers "the new law means it doesn't matter what's on the contract". Although untrue, that statement would be plausible enough to generate more sales, at least until consumers heard enough stories about court cases that they no longer believed it. Certainly there are consumers who have been helped by this law, but there are probably others who have been disappointed by it.
- SEMW 11y ago
  > Certainly in the UK there are many cases where "unfair" contracts can't be enforced AFAIK there's no unfairness provisions in common law. There are two statutes about unfair clauses - UCTA (Unfair Contract Terms Act 1977) and UTCCR (Unfair Terms in Consumer Contracts Regulations 1999, the UK implementation of an EU directive). Both are mainly focused on limiting businesses trying to enforce unfair terms on consumers. UCTA limits itself to specific types terms (liability limitations etc). UTCCR is much wider in the types of terms it covers, but still only applies to 'standard form' contracts (ie not-individually-negotiated terms), and only to terms which are unfair "to the detriment of the consumer". Ie none of them will help a bank trying to claim that one of its own standard form contracts were unfair to the bank! Edit: If you just meant that that the existence of this sort of legislation undermines my 'certainty of contracts' point, I disagree. For one thing, even the more-powerful UTCCR explicitly bans the core terms of the contract (ie how much it costs and what you're getting for your money) from being considered 'unfair' -- it doesn't try to judge whether a bargain is good or bad. For another, there's a hell of a difference between the law choosing not to enforce a term in a standard form against a consumer who probably didn't read and certainly couldn't have negotiated it, and someone objecting to a term they did write/negotiate - i.e. either an individually negotiated term or, as here, a bank objecting to a standard form term it wrote itself.

by SEMW 11y ago

peteretep 11y ago

Maybe. Certainly in the UK there are many cases where "unfair" contracts can't be enforced, though, which presumably stays as law because it is seen to be beneficial.

jessaustin 11y ago
Beneficial to whom? I won't pretend to know anything about the UK, but in those places I've lived, any time the law gets "complicated", it's because someone wealthy has an interest in it being so.
- SEMW 11y ago
  Would you mind having a read of, say, UTCCR[0] and let me know what wealthy interests you believe it serves? Here's the text: http://www.legislation.gov.uk/uksi/1999/2083/made http://www.legislation.gov.uk/uksi/1999/2083/made . As far as I can tell its effect is to tilt the balance strictly in favour of the consumer, but I'd be interested if you see something I don't.
  - jessaustin 11y ago
    I hesitate to comment on another nation's laws, because if it works for them I'm glad (motes and beams, etc.), but ISTM "shall not be binding upon the consumer" understates a great deal of legal procedure, nearly all of which would be increased business for the tort bar. (Which, again, may be less of a problem for other nations than it is for us.) If 100 consumers feel a contract term is unfair and so decline to meet their obligations, the firm will file a suit against e.g. the 20 least likely ones to contest rather than settle, which is good for the firm's attorneys (or is it barristers?). Etc. Eventually a consumer will contest the suit under the provisions of this law. That will entail more court business. In anticipation of this rigmarole, this law was probably a great one-time boost for those who rewrite contracts for purposes of risk-management. It certainly wasn't welcomed by small shopkeepers who enter into relatively simple contracts with their customers (e.g. to purchase an expensive item on terms). To compensate, such firms might have told their customers "the new law means it doesn't matter what's on the contract". Although untrue, that statement would be plausible enough to generate more sales, at least until consumers heard enough stories about court cases that they no longer believed it. Certainly there are consumers who have been helped by this law, but there are probably others who have been disappointed by it.
SEMW 11y ago
> Certainly in the UK there are many cases where "unfair" contracts can't be enforced AFAIK there's no unfairness provisions in common law. There are two statutes about unfair clauses - UCTA (Unfair Contract Terms Act 1977) and UTCCR (Unfair Terms in Consumer Contracts Regulations 1999, the UK implementation of an EU directive). Both are mainly focused on limiting businesses trying to enforce unfair terms on consumers. UCTA limits itself to specific types terms (liability limitations etc). UTCCR is much wider in the types of terms it covers, but still only applies to 'standard form' contracts (ie not-individually-negotiated terms), and only to terms which are unfair "to the detriment of the consumer". Ie none of them will help a bank trying to claim that one of its own standard form contracts were unfair to the bank! Edit: If you just meant that that the existence of this sort of legislation undermines my 'certainty of contracts' point, I disagree. For one thing, even the more-powerful UTCCR explicitly bans the core terms of the contract (ie how much it costs and what you're getting for your money) from being considered 'unfair' -- it doesn't try to judge whether a bargain is good or bad. For another, there's a hell of a difference between the law choosing not to enforce a term in a standard form against a consumer who probably didn't read and certainly couldn't have negotiated it, and someone objecting to a term they did write/negotiate - i.e. either an individually negotiated term or, as here, a bank objecting to a standard form term it wrote itself.