The law is full of defaults, as it is supposed to be. Some are in statutes, some are the result of many years of history of common law. They define the duties that people have in many ordinary transactions.
But today, as I’m sure you have noticed, everywhere you go are declarations eliminating those defaults. Have you parked your car at a pay lot without getting a ticket or receipt that tells you that you are only being rented space, and the lot has no liability if your car is trashed, or that there is no bailment? Have you installed software without having it disclaim any warranties of fitness, or making you waive every liability they can think of? Have you gone into a stadium without some large set of terms on the back of your ticket?
In many areas, in almost all transactions where they can, large (and even medium) organizations work to assure they are not governed by the default law, and that any liability or duty they can be rid of, is made rid of. The default terms only apply — assuming the various adhesion contracts they present are enforceable — to small players who don’t know enough to make such a disclaimer, or who could not afford the legal advice to draft one. By and large, the default liabilities end up only applying to the small-scale operator, and the ignorant.
Surely this is not the intent of the law! And in some cases laws are modified to control what can be waived. But I am not necessarily against giving people the right to redefine the terms of their relationships away from the default. I am pointing out there is a problem when everybody who knows enough to care is trying to get away from the default. In that case the default is not doing what was intended, or even the opposite of it, which is often to protect the consumer.
I propose that part of the legal system include a body which studies the ways in which default law is modified by both explicit, and more importantly, implicit contracts or declarations of modification. As soon as it is judged that this is happening most of the time, the default law should be tuned. It should be tuned so that most of the time a special contract is not needed, or can be made far more simple. Or, in more extreme cases, it should be tuned so that certain modifications are not possible via implicit contract, and sometimes not even possible through explicit but non-negotiable contract. (And in the most extreme cases, possibly not modifiable even with negotiated contract, but I am not in favour of this.)
This might seem to strip people of rights, but it would be rights they had already lost with all big players. There is a cost in trying to get a contract of adhesion, and if done properly, such changes should eliminate the need for them in most cases. One might believe the public would now need to be notified of how their default rights have changed — and they should — but in fact one thing that would be studied would be how many of the public were aware of their rights and actually benefited from their rights. A right that nobody ever benefits from and which just causes an extra contract may not be that useful a right.
And it raises the bar on people who want to bend even further from the norm. If a new norm is defined the safe thing is just to use it, not to try to have to add another contract. One might not take this burden just for one clause.
Of course, it is important to examine the real change the contracts are making in the real results, and not just what they say. The big parties must be showing regular and uniform success in waiving liabilities (or whatever) in order to get a change in the true default law. That’s important, because courts often rule clauses in such contracts to be unenforceable, and further when there is an imbalance of negotiating power, as there usually is here, the courts will side heavily with the party who didn’t write the contract. I’m talking about situations where courts have regularly ruled, for some time, that putting a clause on a ticket will make it enforced, and that effectively every ticket gets that clause.
This is not easy. Implicit contracts, and click-to-agree contracts, are making big changes in how the law works, and the law doesn’t understand these changes very well yet. My goal is not to strip everybody of their rights once an industry decides to do it, but to find a way to make the law and its modifications easier to understand.