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I have read and understood the thing I didn’t read and would not have understood.
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I have read and understood the thing I didn’t read and would not have understood.
We have all ticked the box that says we have read and understood the terms and conditions. We’ve been forced to lie because we need the software upgrade. No one in their right mind would read thousands of words before completing every transaction in their daily life. And if they did, we can be pretty certain the ‘understand’ part of the declaration would remain a lie.
A business to consumer contract for a product such as a bank loan is the ultimate uncooperative channel. It is an unbalanced conversation between a legally naïve customer, optimistically aware of the brand’s marketing promises, and the bank’s legal team which has high expertise. Since these terms are non-negotiable, it is often a rational choice for the consumer to tune out of the monologue and decide not to read the words they won’t understand.1
Franklin Snyder and Ann Mirabito2 researched the attitude to business terms among laptop buyers. They found that people had little faith in their own ability to understand the sales agreement, and didn’t trust in a legal route to assert their rights. Instead they preferred to appeal to the suppliers’ moral obligations and fear of reputational damage by using negative social media reviews.
So here are some suggestions.
Use a declaration that doesn’t force people to lie. Fairer ones I have seen are:
I accept the terms of business
I have been informed of the importance of reading the terms of business
I have received the terms of business.
Transform the terms into plain language. There is no excuse for legalese in these days of plain language standards and legislation.3
Use layering – include a clear explanation of key terms along with the legal stuff.4
Incorporate risk legibility – if there are unusual or surprising terms, highlight them instead of hiding them. Research which ones have caused disputes in the past, and be open about them.
Talk to the client’s legal team about proactive law – finding other ways to achieve what they use the small print for now.5
Invoke your client’s brand values. Most brands claim to value fairness or customer focus. Challenge them on that.
1. Omri Ben-Shahar (2009) The Myth of the “Opportunity to Read" in Contract
Law, European Review of Contract Law 5:1.
2. Franklin Snyder & Ann Mirabito A, (2019) Boilerplate: What Consumers Actually Think about It’, Indiana Law Review 52:43
3. The International Plain Language Federation offers the evidence and resources.
4. Robert Waller, Stefania Passera & Helena Haapio (2022). Layered Contracts: Both Legally Functional and Human- Friendly. In: Jacob, K., Schindler, D., Strathausen, R., Waltl, B. (eds) Liquid Legal – Humanization and the Law. Law for Professionals. Springer.
5. George Siedel & Helena Haapio (2011) Proactive Law for Managers: A Hidden Source of Competitive Advantage, Gower Publishing, 2011
Cartoon by Matthew Reuter, The New Yorker, reproduced by permission