Comment by cyphax | Hacker News Reader

Comment by cyphax | Hacker News Reader

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I'm not a lawyer and I'm going to appear to play the devil's advocate here, but bear with me and let's say it's not illegal for an agreement to contain such a clause. If it breaks no laws, then why is it illegal? Assuming you have signed an agreement for this knowingly (or at least they presented this agreement to you and it's fair to presume that you've read it before signing it). So what you would have to do is refuse to sign that. Maybe you'll have to find another hotel but you can leave a negative review pointing out this outrageous demand from this hotel. They can't charge anybody a hundred pounds and they get really bad reviews for it.

So basically I don't know what got into their heads when they thought this is a good idea, either. At the same time, though, I wouldn't be surprised if this is not an illegal clause per se. If they charge a hundred pounds for structural damage to their hotel, or theft of towels or so, it would make more sense, and if they consider a bad review to be damaging, it isn't even that far fetched. I think they should know better than to do something stupid like this at the end of the day, however.

Dunno about the UK, but in Germany "surprising" clauses in everyday contracts such as this with consumers are generally illegal. End of story. If this got as far as a court, case would be over in seconds. Read opening statements, have laugh, verdict, good day.

Also don't know which way the EU swings on this, my guess would be towards the German position.

Yup. The alternative is - expect all the clients to read small print on everyday contracts and interpret it correctly. That would be dumb and would slow economy considerably. Imagine hotel making the contract 200 pages long.

Staying for a night at hotel shouldn't require you to hire a lawyer.

What if you declare it up front, in big print. Really. I wonder how many people would still stay. Just put it right above the dotted line on the front page.

By signing this receipt and accepting the key to your room you agree you not place a negative review of this facility on any public accessible site.

The fact that most people would only look at the bottom line (i.e. price) doesn't mean that this wouldn't be a gross infringement of freedom of speech, and unfair trading to boot. Trading involves the possibility of goods not being up to par, and hence the customer complaining to a third party. As long as complaints are not libellous, there is no reason why they could be forcefully restricted.

Still not a chance. Big ink, flashing letters, PA announcements. Same as invisible ink. Courts have a very low opinion of people getting "tricky".

In Germany at least, for example, ALL Click-Through licenses are invalid (last I checked).

A US company I worked for had various (illegal in Germany) data tracking stuff activated. When I pointed this out, they just pointed to the license agreement. Morons. (It was a hardware/software combination, and you only got to the software a long time after you had bought the hardware).

> Also don't know which way the EU swings on this, my guess would be towards the German position.

The EU law from 1993 "Unfair Contract Terms Directive" is probably where it comes from. So all over EU.

IAL, and I could imagine this fee getting upheld in at least a few US jurisdictions (with the right judge), leaving consumers to rely solely on the Streisand effect to get satisfaction.

The classic notion of a contract as an expression of the compromises forged in a battle between two sophisticated, represented parties has been replaced by overlawyering, boilerplate, and clickwrap.

http://abovethelaw.com/2010/06/do-lawyers-actaully-read-boil... (Judge Posner is perhaps the most acclaimed US jurist not on the Supreme Court - a "Law and Economics" pioneer who can roughly be described as libertarian)

What's the solution? Hold consumers responsible for every detail of wordy documents they didn't have the time to read, much less negotiate? Make companies bear the costs of every complaint - real, imagined, or fraudlent - a consumer can dream up? Companies can be cheap and sneaky, and consumers can be petty, stubborn, and stupid.

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

> Assuming you have signed an agreement for this knowingly (or at least they presented this agreement to you and it's fair to presume that you've read it before signing it)

In the EU, not all contracts that you read and sign are legal, e.g. if it's a contact you can't influence, and it significantly alters the balance of rights to your deteriment.

"Unreasonable" terms may be illegal at common law. And the unfair contract terms act limits the ability to insert unusual contract terms without drawing people's attention to them, especially in contracts where they haven't recieved independent legal advice.

>Maybe you'll have to find another hotel

That's refusing you service and extortion.

The "another hotel" might be 100 miles away, in which case it also costs you money.

This happened in UK. In Europe 100 miles is a long way. There is another country 80 miles away from where this happened, and a different country 111 miles away.

Even something like 20 miles is still an incovenience and can be costly (or even troubling: imagine bad weather conditions outside, etc).

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