SI vs. iHub - Battle of the Boards Part 2 Message Board

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Pastimes : SI vs. iHub - Battle of the Boards Part 2

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To: EL KABONG!!! who wrote (4708)	8/30/2003 8:10:27 PM
From: The Philosopher	Read Replies (3) of 5315

I should have read on before replying myself. You are dead on about the CDA not applying. You are also correct about the contract provisions, except that you haven't, I think, taken into account that there are contractual obligations beyond the TOU. The implied covenants of good faith and fair dealing come to mind; there are other, statutory limitations also such as implied warranties and anti-fraud provisions. If Matt has published a set of TOU, but slips in there that he has absolute discretion which means the TOU really mean nothing, a court could well say that that was a violation of the implied covenant of good faith and fair dealing, and that a member having paid for the right to post has the right to continue to post unless they have demonstrably violated a reasonably necessary condition of posting. Whether that would apply in the present case I have no position on and take none. But the concept of implied coveants is part of the contractual relationship, and in fact has been used in the past to persuade SI (under its old management) that it was acting illegally and had to rescind at least one action which violated the published TOU.

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