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Most of the time we get away with not reading the small print, but occasionally we trip.
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Most of the time we get away with not reading the small print, but occasionally we trip.
A newspaper reported:
“A university professor who got off a train before his final destination was stunned when he was asked to pay £155 to leave the station … Professor E said: ‘Like most people, it did not enter my head that I was in default of the terms and conditions by getting off the train early. Anyone would understand that you’d be liable to pay extra if you stayed on the train too long. But if you get off early, you have not used all the product you have paid for… Nobody could anticipate that you’d be at fault for getting off too early. That is madness.’
A train company spokesman said: ‘The terms and conditions of the Advanced Purchase First Class ticket, which Professor E had used, clearly state that breaking a journey en route, or starting from an intermediate station, is not permitted.’”
When this kind of thing happens to us, it feels a bit like tripping over – you thought the way was clear but you were caught out by an unexpected step.
It’s particularly a problem when we buy services like insurance or travel. A flight or rail journey is a commodity, and to maximise profits the transport operators charge more for features such as flexibility or late availability – all bound by contract terms.
Would more transparent terms and conditions have helped the Professor? The train company stated that, in their view, the terms were in fact clear, and perhaps they were. But which of us even sees the small print when we buy a train ticket? And who reads a full car rental agreement at the airport while the queue behind us builds?
Instead, we trust in the reasonableness of other people and organisations. And when the world fails to work as we expect it to, we trip over – metaphorically speaking, that is, because in his incorrect but entirely understandable interpretation of the rules Professor E had what we might call a cognitive accident.
Margaret Jane Radin argues that boilerplate (standardised small print contracts) is inappropriately categorized as an aspect of contract law:
Receipt of boilerplate is often more like an accident than a bargain. What follows from this fact for legal oversight of boilerplate? Bargains come under contract law; accidents come under tort law. (page 197)
Tort law is about compensating individuals who suffer harm. She argues that unfair boilerplate is in effect a defective product, and that relationships regulated by it
are more like the relationship between the manufacturer of a product and the end-user who might wish to claim that the product is defective and has caused him injury…
Radin MJ (2013) Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Princeton University Press.
Waller R (2020) Contract design for humans: preventing cognitive accidents, Simplification Centre Paper 16.