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Why not just accept the fee when the bitcoins are placed in escrow? You can always refund them later if the transaction fails.
Because that requires that you do some math to figure out how many to send to pay the escrow plus release the right amount.
And because I'm planning on eventually implementing "receiver creates and pays" escrow transactions, so merchants can setup escrow transactions (via the API) for their customers. Merchants are used to paying fees as just a cost of doing business.
RE: how will I prevent you from creating new escrow transactions if you don't pay? Click on "Create Escrow" and you'll be taken to a page that politely explains you're not allowed until you pay. If you use the API, the create_escrow call will fail.
I realize some people may try to cheat by using/creating multiple Google accounts. That will be a cost of doing business for me. Perhaps I will reserve the right to publish deadbeat account email addresses on a "hall of shame..." (I'd implement a Terms of Service Agreement to which you would have to agree before creating a new escrow)
RE: will this affect coins in existing escrow accounts:
No, existing escrow accounts will be unaffected, these new rules will be for new escrow accounts only.