Longtime reader D.C. Toedt pointed out to me this post on The Consumerist. It applauds the terms of use of a company called Aviary, in that it offers, in bullet points set out to the right of the full version of the terms of use, a plain-English summary of the provisions. (Click here to go to Aviary’s terms of use.)
I think that approach is a dubious one, in that it violates a basic rule of contract drafting, namely don’t say stuff twice. If you fail to capture in the bullet points an important nuance contained in the full version, you shouldn’t be surprised if an aggrieved user sues you if you try to enforce that nuance.
The bullet points contain enough text to require the reader to pay attention, and the full version is the usual bloated crap. (Pardon my French!) That suggests that it would have been easy enough to achieve a compromise by including just the full version, cleaned up to make it much clearer and much more concise.
Incidentally, although the bullet points are evidently striving for the feel of a consumer contract, the full version sure looks like your regular business contract. If I were Aviary, I’d bite the bullet and treat it like a business contract and ditch the second person (using “you” and “your” to refer to the user). That’s something I discuss in MSCD 2.5 and in this August 2006 blog post.
An interesting note, will :) appear more often in internet access contracts?
Examples from Aviary –
“We aren’t responsible if your internet access provider isn’t working. :)”
“Please don’t disregard our copyright notices. :)”
I agree, Ken. If the bullets are not sufficiently nuanced, they’re likely to create trouble. If they are sufficiently nuanced, then just write the whole contract that way. As bad as it is to say the same thing twice in a contract, it’s worse to say two somewhat different things once each.
Are these bullets actually even part of the agreement? Does the merger clause expressly include or exclude the bulleted summary? Maybe they need a conflicts clause to explain whether the overly verbose main text or the overly cute summary text controls.
And, to Jason’s comment, if the summary is part of the agreement, then what effect will the summary’s emetic little emoticons have? Will the presence of a little winky-face symbol mean that the parties didn’t really intend to be bound by the immediately preceding sentence?
This is depressing.
Even if the notes are not deemed to be the actual terms (and on balance I would think they are not), I would still be concerned that they could create estoppel issues in the event of conflict, because they indicate how Aviary intends to act in respect of the agreement.
Or, alternatively, is this the provision of legal advice by Aviary?
It is a shame, because making dry legal text understandable to the people that are being bound by it is both important and worthy, and they must be applauded for making the effort. The chosen method is unfortunate, though.
The smileys make me feel ill also, as does the declaration of love in the second last note!
How is this really different from using paragraph headings (I realize they are different but they are conceptually similar)?
If there is a general disclaimer that says the detailed text governs, then possibly all this additional text on the right side of the contract serves as an outline. Remember no matter how simply we draft contacts, most non-attorneys don’t like reading them, or just don’t read them. To that end, a summary in the document may help then feel more comfortable with the document and then they could dive in and read the whole thing (it helps to make it less intimidating).
JA: Sure, the bullet points are analogous to headings, but the degree of difference is important.
And a disclaimer is a poor remedy for giving the reader mixed signals.
As regards non-lawyers not reading business contracts, my concern is business contracts, which business people ignore at their peril. Consumer contracts are a different matter; I certainly didn’t read my mortgage. I suggest that the best you can do is write them as clearly as possible and let consumers decide whether they can be bothered to read them.
Ken