A reader asked me whether I could recommend any MSCD-ish resources on drafting consumer contracts.
The short answer is that I’ve never looked for any such resources, although I recall that the 1981 book Writing Contracts in Plain English
was a pioneering work in this field. Readers, can you recommend anything?
I’ll now attempt slightly longer answer.
I think that much of MSCD would apply to drafting consumer contracts. Here’s what would be different:
- Consumer contracts are more likely to use the second person (you) for one of the parties. I discuss that at MSCD 3.7.
- Use of the second person, plus the need for simplified language, mean that it would be best to do without shall in consumer contracts.
- Beyond that, much of the vocabulary that’s standard in business contracts (for example, the word material) is too complex for consumer contracts.
- Because consumers aren’t inclined to read consumer contracts, it makes sense to make them more alluring by adding what in this 2011 post I call “document-design bling.”
- I assume that depending on the industry, there are laws governing what you say in consumer contracts and how you say it.
There are indeed many state by state and even federal laws that impact consumer contracts. Many states have “plain english” statutes and also have specific rules, required language (e.g., gym contracts), etc. that apply. Consumer protection statutes may also have specific requirements. Some states have procedures where you can even submit proposed contracts to the Attorney General’s office (or equivalent) for a review. The consumer contracting world brings a host of issues that commercial contracting does not – and the case law is voluminous on what does and does not past muster in a given jurisdiction. The MSCD would likely be a valuable resource to accompany the drafting process as its principles are based on sanity, clarity and common-sense.
Given the international aspirations of MSCD, one would need to look on a country-by-country basis as to whether consumer protection laws dictate or constrain the content of agreements as well as the style in which they are written. In the case of UK contracts, they must be written in “plain, intelligible language” and must not be unfair. I have found the Office of Fair Trading’s guidance useful – it includes “before and after” versions of contract terms that they have challenged. The “after” version is often very simply expressed and pro-consumer. See this page and dig a couple of pages down: http://www.oft.gov.uk/business-advice/unfairterms/guidance/OFT311/Groups/
When it comes to consumer contracts, my aspirations for MSCD are very modest: once you’ve paid attention to everything else that applies, MSCD might help with the rest.
Ken:
I think the main changes would be those you outline above and a bunch of layout changes. I tend to write consumer-oriented documents in the form of an FAQ, even when it is a binding agreement. I have found that consumers are able to read and understand it, but it is a very small set of data. For provisions that are supposed to be conspicuous, I would include an early list of those somewhere if the document was very long.
Chris
In my jurisdiction, the Plain Language Act applies to consumer contracts. It requires meeting either an objective test or a subjective test.
The objective test effectively requires locating and purchasing software to calculate average word length, sentence length, paragraph length, and other criteria, so many lawyers prefer to work under the subjective test that the contract be “plain and simple.” Ha, ha.
In that case, as well as when writing agreements where the other side consists of individuals not represented by counsel, I try to write the whole document in words of one or two syllables — with exceptions like proper nouns and words of five letters or fewer like the trisyllable “area” — to insulate myself and my client from a charge that we took advantage of laypersons by the use of assaultive gobbledygook.
It’s oddly fun: “statute of limitations” becomes “law that says what the last date is to start a timely suit.”
One quickly tries to “up one’s game” by applying rules like “never use a disyllable when a monosyllable will do.”
In 1998 the [U.S.] Securities and Exchange Commission published its Plain English Handbook for use by companies drafting legally-required investor disclosures. It’s a decent resource. https://www.sec.gov/pdf/handbook.pdf
Now you’re in the realm of business writing generally. That’s way broader than consumer contracts, and there’s no end of resources.
I’ve come to agree with your statement that the single most important step to improve contract drafting is to use “shall” properly. If you’re ever going to persuade the masses to follow the principles in your manual and employ usages consistently, then I can’t see how using something other than “shall” to express a duty is going to be helpful, even in consumer contracts.
I’m at peace with the idea that business contracts and consumer contracts are two different things. The only masses I’m worried about are the swarms of lawyers and contract-management professionals handling business contracts.