Let them jump on trampolines and play paintball. 🙂

But assume contracts were salient, and you had two (or more) providers of these activities. Further assume some providers are known to have more fair and balanced contracts than others. All else equal, wouldn’t you prefer the former type?

Also, in many instances terms are routinely enforced on some consumers (less powerful, less educated) but others get their way out. Example include refund/return policies, late check-out at hotels, illegal terms, unreasonable charges for roaming data, no exit contracts, etc. – all are often only selectively enforced, which means a problematic cross-subsidy.

What I’m trying to say here is that there’s more to this than meets the eye.

Thanks for an interesting discussion!

I see where you come from, but how do we know if this is indeed fallacious? When firms want to grab consumers’ attention and disseminate information they find ingenious and super-effective ways to do so. Same when they want to dissuade consumers from reading…

Furthermore, aren’t ex post disputes a good reason to draft readable consumer contracts? How about consumer forums, blogs and organization who would like to review, comment and rank contracts? How about laypeople, who are deterred – ex post and ex ante – by both illegal terms and legal jargon they cannot understand? There are some additional reasons for insisting on readable legal documents, (some noted in the article…), but shouldn’t we all be entitled, as a matter of principle, to enter into readable contracts, regardless of our decision to read or not read them?

I would also posit that it doesn’t matter except at the extremes. As “contracts” become more ubiquitous, we all pay less attention to them, despite semi-regular warnings in the popular media about all the things people unknowingly agree to. My non-lawyer wife regularly gives me a hard time for telling her not to sign anything without reading in her business despite the fact that I regularly do so. But am I going to not let my kids jump on a trampoline or play paintball because an NY choice-of-law provision in a waiver for a Texas facility is BS?

Samuel, I guess the broader point is, to put it colloquially, if no one’s reading the agreements, who cares if they’s understand them if they did? And saying, “Maybe they’d read them if they could understand them,” is fallacious. No one complains about abstruse agreements until they’re in a dispute.

Hi Matt, I appreciate your comment and generally share your sentiment. We need to make consumer contracts more salient in order to incentivize firms compete over them. And I agree that plain English can often help, but not always. But it’s perhaps a very good start.
One alternative would be to develop tech apps or other tools that read contracts and privacy agreements, and then rank/recommend contracts or warn consumers.
BTW, data shows there’s, to some extent, evolution in (and differences among) standard form contracts. Some of it is a response to case law, while another part of it is probably due to pressure from various players, including the mass media, blogs etc. And some firms are now using interesting other techniques to improve their contracts and make them more salient for consumers. We detail some examples in the article. Samuel

Hi Kevin, and thanks for sharing your thoughts. That’s a very fair comment. Three quick thoughts. First, people tend to overestimate the general levels of literacy and English proficiency. Among other things, it is easy to forget that many youngsters are entering into these contracts, as well as immigrants and less-educated consumers. In short, while some consumers can read these agreements (as they can read this blog/post), for many others that might be too challenging.
Second, while it makes a lot of sense to often not read these contracts, it is surprisingly rewarding to do so in some contexts. As a quick anecdote, you might want to read this relatively recent report about a woman that won $10,000 by reading the fine print 🙂 https://www.usatoday.com/story/news/nation/2019/03/07/woman-reads-fine-print-wins-10-000-insurance-company-contest/3091831002/
Third, if more people were reading, firms would have had the incentive to draft better balanced agreements….
That’s an important point and we address these and other reasons in the article. Samuel

* Sometimes, the issues involved are just complex. Plain language can help but not necessarily solve this.
* Since almost no one reads these documents or makes purchasing decisions based on them, businesses aren’t interested in spending time or money developing good ones. They want whatever can be churned out quickly, which usually means regurgitating the same crappy contract language that everyone else is using.
* If not done well, plain language can result in additional risk. Business aren’t interested in investing resources to arrive at a plain language document that provides them with less protection.

Until that calculus is changed, through regulations or consumer pressure, the safe bet for businesses will be to stick with that works and right now what “works” for many is long, complex documents with onerous terms that can nevertheless still be relied on in court.

Hello Ben. Our study did not compare online to offline consumers contracts. For various reasons (explained in the article), we examined only the most popular 500 “sign-in wrap” contracts. That said, I share your intuition – there’s no reason to assume the results would differ for offline contracts. Samuel