Another reason why your Terms of Service might be dead in the water
Today, we’re going to look at another problem, this time with the Terms of Service themselves, that could make a judge throw out the important clauses altogether.
What is “consideration”:
In the last post, I mentioned the three things that make up a valid contract. One of these was something that lawyers call “consideration.”
Consideration is a legal term the means that the contracting parties have bargained for or exchanged value in the contract. Without consideration, the contract is called “illusory,” and is unenforceable. A court won’t hold it against the other party, even if they have “accepted” the contract.
Essentially, you’re making a promise without really promising anything or without the obligation to actually do anything. A good illustration of this would be saying “I will give you 10 dollars if I feel like it.” Well, it’s up to one of the contracting parties to “feel like it” and actually give up the money. There’s no real contract there.
What does this have to do with my Terms of Service?
It is a fairly common and notorious practice among website developers and startups to copy Terms of Service from other websites wholesale, and simply change the names and other important info. The reasoning is somewhat sound, I suppose; someone’s lawyer wrote it, so it’s probably good, right? Well, it’s also fairly common for Terms of Service to include a clause that goes something like this:
If you have a Terms of Service on your site or mobile app, check it for a clause like this. Chances are good that there is something very much like this in there. And that could be a problem if you get sued.