There is a growing global movement towards plain language contracts, especially for individuals or consumers. What does plain language mean and is it enough?
What is plain language?
According to the Plain Language Federation (and this is the definition in the proposed new ISO on the topic):
A communication is in plain language if its wording, structure, and design are so clear that the intended audience can easily find what they need, understand what they find, and use that information.
This means a contract needs simple language, simple structure and simple design.
Is plain language enough?
By itself plain language cannot create a transparent accessible readable contract.
In 2017, I revised the Federation of Master Builder’s contracts. Although they had been awarded the crystal mark by the Plain English Campaign for clarity, they were still confusing to complete. For example:
- the document required certain important blanks to be completed such as the start date, duration and contract sum
- various sections needed to be crossed out to confirm the combination of terms agreed
- various sections needed to be completed eg to identify the critical contract documents, and if these are at the back they might get missed off
- the parties needed to agree and write in the time periods for interim bills and how long the client had to pay.
A judge – who reviewed the 2016 edition of the FMB Domestic Contract – commented that ‘not surprisingly‘ one of the home-owners on a refurbishment project ‘indicated that it was a complex document and they would all need to look at it‘.
The structure of the contract left the parties, neither of whom would normally have legal assistance, to correctly complete the contract in dozens of different places scattered throughout its nearly 30 pages.
Although the design appeared clear enough, the responsibilities of the parties, the key data about the project and the rights and remedies were scattered throughout the clauses. An inexperienced home-owner would have struggled to find what they needed easily or quickly.
However, the home-owner’s argument that the FMB contract was unfair or imbalanced under the Consumer Rights Act 2015 was not upheld. The judge said that, despite being produced by a trade association representing builders, the terms were fair and balanced.
What should you do?
Although the bare minimum for consumer contracts – either under legislation or so as not to annoy your clients – is that they are written in plain language, this is not enough to ensure your contracts safeguard your business.
Your clients need to trust that the contract is fair and balanced, that it easily shows them their role, is quick to complete accurately, and they can access and read it from their smartphone.
Aim for simple digital trust-based contracts.
Case: The Sky’s the Limit Transformations Ltd v Mirza [2022] EWHC 29
