University of Western Australia Law professor Camilla Baasch Andersen has helped businesspeople draft legally binding contracts that take the form of simple comic-strips, arguing that their simplicity not only promotes understanding, but also insulates companies from the risk of courts finding their contracts unenforceable because they were too confusing (an Australian court has forced insurers Suncorp and Allianz to refund AUD60m paid for insurance that was of “little or no value,” but which Australians purchased thanks to confusing fine-print that made it hard to assess).
Andersen points to other examples worldwide, like simple infographic contracts presented to functionally illiterate South African fruit pickers.
It’s fascinating in the context of Europe’s pending General Data Protection Regulation, a top-to-bottom redo of the rules regarding data-handling by advertisers that requires that every piece of data gathered and shared be explicitly consented to by web users, with enough clarity that they can predict what will happen to it. If simple cartoons like the ones above set the bar for “sufficient clarity,” then the ability to use complexity to obfuscate or mislead will be much harder to hide.
That people would agree to terms and conditions that include giving away their first-born child shows the problem with current contract design. It is also evident that there is no expectation of any actual reading or comprehension. It would just be too time-consuming. And yet these clauses are likely to be binding.The need for clearer formats and terms, in insurance contracts as well as many other types of agreements, is obvious.
But there is nothing stopping us from changing the way we draft contracts. Except, possibly, the legal profession itself. It’s traditionally driven by a need to cover all bases, anticipate even the most unlikely potential issue and draft partisan agreements.
Comic contracts and other ways to make the law understandable
[Camilla Baasch Andersen/The Conversation]
(via Naked Capitalism)