Should Complex “Terms and Conditions” Documents Be Legally Binding?

Posted by Alex Mapes.

This article caught my attention. It is entitled, “If the small print terms and conditions require a PhD to read should they be legally binding?” The article highlights the complexities of user agreements and how this could conflict with consumer laws. The article explains how the legal agreements are required to be understandable to the party agreeing to them, and if the agreements are not written in plain English, they may not be legally binding.  

Insurance policies were analyzed using various readability measures using well-established text difficulty measures such as text complexity and length of sentences. They ran seven policies through the reading difficulty tools which also included all the small print. They found that all the policies required a very high level of education to be understood. The scores of the policies ranged from requiring 13.9 years of education (high school plus one year of university) whereas the most difficult one required 19.1 years (Ph.D. level). The most readable policy required almost 14 years of education. This complexity suggests that the contracts could be challenged as to whether it is fair or not.

The UK courts do not consider readability but focus on whether the contract clearly communicated its effects. In the US, there is a trend to use readability scores. Texas is using Flasch-Kincaid reading scores and South Carolina requires that loan contracts have a score no higher than seventh grade.

Absurdly lengthy and unreadable user agreements and privacy policies are an unavoidable aspect of modern life. Contracts like these are not transparent as virtually no one can comprehend them, and with the amount of these contracts and agreements that are required to use every software or device, it is unrealistic to expect consumers to spend the time to thoroughly read these documents. For these reasons, I do not believe these contracts should be legally binding and this style of the agreement should be completely reevaluated to better respect the consumer.

Alex is a business major at the Stillman School of Business, Seton Hall University, Class of 2024.