Contracts are not often described as user-friendly… more often they are noted as being the opposite. That may be harsh if it comes from a user, but it is feedback you need to act on if it comes from a judge.
In Blu-Sky v Be Caring the English court had to consider some standard terms and conditions related to mobile phones. Not many of us read them, and – if we did – we might get a shock. In this dispute, a social care provider faced an unexpected cancellation bill of £180,000!
While the court held that terms on a website, particularly if well-titled or described, can be part of a contract concluded by email, it had strong words for the writers of those terms. The court said the content was:
- “unclear” with”no explanation” as to what services each set of terms related to
- “not in any way user-friendly to any reader, let alone a non-legal reader” (eg detailed text, in closely spaced small type and with no separate clause headings)
- confusing as the clauses were unrelated to headings and vice versa
- “buried” within a section which was ‘innoculously titled… which itself was buried in the middle of the lengthy terms which themselves were not clearly identified as contractual‘.
There is a stinging rebuke for the contract writers as the combination of the poor process (ie getting a client to sign an order form which doesn’t clearly state it will create a contract) and the poor content (see above) was tantamount to misrepresentation or concealment.
That’s very bad behaviour, analysed this way:
… the offending terms are concealed within detailed T&Cs, making it very hard to see the important from the unimportant, and introduced by reference to an order form which gives the impression that it is the first step to entering into a commercial relationship with [the mobile phone supplier]. In my judgment that is a very powerful reason for holding that the clauses were onerous and that not only were they not fairly and reasonably drawn to the defendant’s attention but that on an objective analysis they were positively concealed.
Getting your terms included
Even if other providers in your market use it, that does not mean your clause is not onerous, unusual or outlandish.
If you want to rely on an unusual or onerous clause, make sure you ‘fairly and reasonably’ bring it to your client’s attention. The more ‘outlandish’ your clause, the greater notice you will need… and not just RED BOLD CAPITALS.
Ideally, your client should be told what to expect before entering into a contract with you:
- Your documents should make it clear whether they are part of a contract
- Your process and documents should not mislead your client as to the legal effect of each step
- You will need to nudge your client to review the clause
- You will have more luck if you have a short (say 500-word) contract which is signed and includes the term
- Any hyperlink to terms should highlight/provide a warning about unusual terms
- You should explain your client’s obligations
- You should take steps to ensure that your client understands the key features of your contract and any unusual or onerous terms
- You should ensure your client gets a summary or copy of any terms linked from elsewhere
- You should use a prominent heading for unsual or onerous terms
- Your clause headings should not mislead your client as to their contents
- You should not bury terms – but make them obvious and clear.
What should you do?
Just because you can write something into your contract, doesn’t mean the court will allow you to rely on it.
The more outlandish or unusual or onerous your term, the more effort you need to ensure you are not misleading a client.
If you are not sure whether your terms will be enforceable or your contract process is effective, or you just want to stop using embarrassing terms and documents, ask us to help!