Friday, December 1, 2023
Contracts Prof Emeritus Royce de R. Barondes (right) brings us news of the latest liability dodge that Terms of Service designers have dreamed up. Professor Barondes booked a hotel room through Priceline. When he arrived, he was informed that the hotel had no vacancies and so his reservation had been canceled. He then discovered the following language in Priceline's terms of service, which I quote in full because the sweep is so breathtaking:
To the extent permitted by law, in no event shall Priceline, including its respective officers, directors, employees, representatives, parents, subsidiaries, affiliates, distributors, suppliers, licensors, agents or others involved in creating, sponsoring, promoting, or otherwise making available the Site and its contents (collectively the "Covered Parties"), be liable to any person or entity for any direct, indirect, incidental, special, exemplary, compensatory, consequential, or punitive damages or any damages whatsoever, including but not limited to: (i) loss of goodwill, profits, business interruption, data or other intangible losses; (ii) your inability to use, unauthorized use of, performance or non-performance of the Site; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained on the ite or any information, software, products, services, and related graphics obtained through the Site; (vi) any transactions entered into through this Site; (vii) any property damage including damage to your computer or computer system caused by viruses or other harmful components, during or on account of access to or use of this Site or any Site to which it provides hyperlinks; or (viii) damages otherwise arising out of the use of the Site, any delay or inability to use the Site, or any information, products, or services obtained through the Site. The limitations of liability shall apply regardless of the form of action, whether based on contract, tort, negligence, strict liability or otherwise, even if a Covered Party has been advised of the possibility of damages.
One would hope that the extent to which such a clause is "permitted by law" would be most limited. If the language were enforced, it suggests that there really is no contract at all, given that Priceline stipulates in advance that it will not be liable for breach. Someone could perhaps test that by using Priceline's services and then not paying. Somehow, I think Priceline would insist that users' liability is not cabined in the same way Priceline's is.
Professor Barondes' experience got me to thinking about the complexities of using travel websites. Pre-COVID, when I traveled more, I joined rewards programs at a few hotel chains. I learned that I get no credit for my stay if I booked at such a hotel through a travel website. Sometimes, the hotel has a hard time finding my reservation because the confirmation number I was given looks nothing like the hotel's reservation numbers. They have no record for me, and they ask me accusingly, "Did you book through a website?" "Well yes," I admit, and I think, "Doesn't everybody?"
When I do so, with whom am I in contractual privity and for what purposes? Professor Barondes is a sophisticated traveler, but your ordinary user of a travel website might assume that they had a contract with a hotel when they booked a stay at that hotel through a website. Not so, it appears. The Seinfeld-inspired hotel is free to say, "you may have a reservation, but we did not hold the reservation." But to the traveler, that's really the most important part of the reservation, the holding part.
It also occurs to me that Priceline is a clearinghouse. You may find your hotel through Priceline, but Priceline may just link you to some other website which is the entity that has some sort of relationship with your hotel. And that relationship may not be with your particular hotel but with the hotel chain's sub-contracted reservation service. As the layers of contractual obligation accumulate, sorting out privity and knowing how to get a remedy can be quite complex.
Even if Priceline offers a refund, which would be a sound business practice regardless of their ridiculous "no responsibility disclaimer," that hardly suffices. The price one pays for reserving a hotel may bear no relation to the price one pays to find a room at the last minute. And then there are the added costs, frustrations and panics associated with actually finding that room.