There is a war going on.
Not as you might suspect with guns, tanks and bombs but much more subtly with words and actions validated from those words.
Business is all about convincing people to move away from someone else and buy stuff from you. Simple. This happens quite lawfully by offering greater choice and options whilst convincing the hapless customer the someone else has less choice and fewer options.
The better our choices and options, the better our life. “Perhaps the children would enjoy St Moritz this Christmas?” or “Which golf course to play today?” or even, “Do we have lamb or beef for dinner?”.
The corollary to that is we remove choice and options when penalising people for doing something unlawful. The more serious matters end up in goal whilst our courts preside over a multitude of ‘offences’ handing out orders which invariably enhance the winners options and choices whilst doing the opposite to the bad guy.
It seems clear that the good side is enhancement whilst the bad is restriction.
Now, for business, the trick seems to be to use language to make sure you retain and enhance your choices and options but at the same time using those same words to remove your client’s options and choices and their ability to go somewhere else for their widgets. The law steps in when this becomes unconscionable and unlawfully disadvantaging.
The repository for all these ‘words’ is in ‘standard form terms and conditions’ which business trot out to ensure they remain top dog and it seems irrelevant to business whether or not those terms are lawful or conscionable because they rightly assume that people will also assume without reading them that ‘the words’ are indeed lawful and must be complied with. Now days they are eminently transparent in plain English and serve almost entirely to remove customer’s choices and options whilst enhancing their own. This does not mean they are lawful and customers are treated as the bad guys.
Perhaps we should all have our own private booklet of terms and conditions which purport to allow us to enhance our choices and options. One paragraph could read, “I am allowed to speed on the roads and can’t be booked”. It’s in writing and must be obeyed! Perhaps Judge Dredd would not see the point.
The war continues between say banks and legislation. Banks want to gather in all the power for all the reasons discussed above whilst the law tries to protect people from the more unconscionable terms . For example the banks deem themselves the sole purveyor of good and evil and demand the ability to remove a clients financial instruments [choices and options] at their sole discretion whilst at the same time denying customers of the same rights.
The code of banking practice and the legislated national credit code prohibit this behaviour by ensuring the banks go through a process allowing customers options and choices before the banks can deem a client redundant and to be shed. Yet those terms keep popping up and the courts keep ruling against them.
These days a term can be ruled by the courts as unconscionable whether or not anyone has been affected the same as actions by the banks using those terms can also be ruled as unconscionable.
Yet the game goes on.
Bad people try and take an unconscionable advantage by trying to mislead the public that their glossy booklets are actually lawful and must be obeyed. Notice that few banks will put anything in writing and they will not want their conversations to be recorded. Could it be that they know their actions to try and curtail customers options and choices to be unlawful?
This is war.