We are both embarrassed and go on our way. Suppose I think I'm buying a steak dinner, and you think you're selling me a live cow, once the confusion is realised there was no meeting of minds, no contract is formed. The "Meeting of Minds" formulation works very nicely. Is the car park owner liable for damage caused by stampeding elephants? How about if part of the car park itself falls onto a car? If the machine is broken can you still park? What if some scumbag puts an "out of order" notice on it and collects the money? A court will look at a situation and imply into existence any more detailed terms needed to handle the case in front of them.
Should we require the owner to have staff present to agree a deal with each user? No, it is enough to post signs explaining the general situation, e.g. You drive into a sign-posted lot, park your car, and leave. Probably some other mechanism could have been conjured but in our world this decision means contract law is used to manage situations where two parties would clearly benefit by cutting a deal, yet they never meet. For Mrs Carlill this meant that buying the product, using it as directed in the advert and then not getting better meant she was now owed £100 (which was a large sum of money in the 19th century) by the advertiser even though they had no idea she'd taken their advertising "reward" literally until she showed up demanding her money. An English Court decided that you can make an offer that you've defined in such a way that you won't receive notice of acceptance, and since /you/ made the offer it's your problem. Search for "Carlill v Carbolic Smoke Ball Company". When, to your disappointment, they don't want to, that is a _learning opportunity_ for you. If you're so sure your users want to explicitly agree to let you do this, make it a separate opt-in, like the regulation says. Judges were not happy, and I pity the fool who first appeared in front of a judge trying to argue that this was somehow legal when it's obviously not. Immediately scumbag landlords wrote new contracts that said basically "I, the under-signed, agree to these terms even though they're not allowed" and then demanded their tenants sign the revised contract instead. Years ago the UK passed a law banning certain contract terms in "short" residential leases (a "short" lease would be e.g. Certainly in the UK no competent lawyer will take that work. If you're thinking maybe you can try this on and see for yourself, you'll probably have to be your own lawyer.
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When you explain this theory to a judge, who like other people has had to check loads of these stupid "I agree I have read a 400 page document before using this free service" boxes, they are going to look at you like you just said you think they're an idiot. Too bad, that doesn't help for a very simple and pragmatic reason: You might think, "Aha, but I made them check a box saying they agree they read it". The GDPR says that you need to have the user explicitly opt in, they get to reasonably assume that's how it works, you can't change that in the text they didn't read. On the other hand the _user_ wasn't able to edit the terms, so really anything they reasonably expected should probably be acceptable. You wrote these T&Cs, so the court is going to conclude that you should have taken that opportunity to add any terms you really cared about. They'll also keep in mind a theory about relative power. OK, so what _was_ agreed? Well, a court is going to decide what a _reasonable_ person thought they were getting into, and they'll use legislation (such as that from the GDPR) to help decide that. And if they didn't read them, they clearly cannot agree with just every random term you threw in there and so it can't all be part of that meeting of minds, so there is not, in fact, a contract with people with those terms.
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Firstly a Contract is a Meeting of Minds, the forty pages of small type in a PDF are nice, but it's laughable that you pretend you thought everybody read those before using your free service.
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