Question for lawyers/legal experts about fine print

Suppose I sign up with a service, personal trainer/gym, maid/vacuum cleaning service… I agree to purchase a used car or a used boat from you… whatever type of contract…

In the 4+ pages of fine print it says "And on January 17th, 2016, at or before 5 PM, Mr Thompson will make an additional payment to Mr Fredrickson of 10/100/1000 $$$ (choose one)… failure to make said payment will result in (don’t know how to put this in legal terminology)… failure to make said payment will result in the forfeiture of all goods, assestes, income, savings and property held by Mr Thompson to Mr Frerickson.

In other words, some small nominal fee or disclaimer hidden in the fine print says if you miss X payment or fail to preform ABC action, we now can take possession of your total entire net worth.

I assume it would not stand legally, but, what would be the reaction from a lawyer/district attorney if the document were placed before them? (after the contract had been signed). Would such a contract even ever make it to court?

Good question…our contract 9with our cable provider) is five pages of fine print-nobody actually can read all of this stuff, can they? Onerous contract provisions are grounds for breaking such a contract, are they not?

yes, thats pretty much my exact point…

Missed the edit window:

What if they charge you some bullsh*t processing fee if you fail to preform some small action or some small payment. Say the fee is $250 on a piece of merchandise that is worth $17.

Probably will be to a large extent dependent on where you live. Sort of sounds like Usury though.

Usury, the illegal action or practice of lending money at unreasonably high rates of interest. Usury made it to the California constitution.

(I didn’t update this)

A judge has the power to nullify or alter a contract if the terms are absurd. I’ve seen it done.

Ok, thanks.

What it if it is some bullsh*t charge of $250 tacked onto a $17 piece of merchandise. Assume there is no restocking fee or whatever that has to be shipped back to India or Pakistan… assume the $250 is completely bogus…

I read about a case involving accidental death insurance sold at a vending machine in an airport. It’s a long and complicated story, but one of the elements there is that there’s a legal principle that if the contract contains something unusual, strange, bizarre, unexpected, you can’t just bury it in the fine print. It has to be prominently displayed and the signer must have an opportunity to read it before agreeing to the contract. I’ll see if I can google up a cite.

The case was Steven v. Fidelity & Cas. Co. Here’s a cite. Airplane Trip Insurance, 20 Wash. & LeeL. Rev. 346 (1963), . Click here for a pdf . Long story short, fine print included a clause which said that the policy would be void if one of the segments of the trip was on a nonstandard airline. The judge threw out this provision because there was no way the purchaser could have anticipated it, didn’t have a change to read it, and probably wouldn’t have understood it anyway. The company had to pay.

The legal concept you’re looking for is unconscionability.

This brings to mind a similar question, for extra credit. About that block of a dozen lines of fine print across the bottom of the TV screen that flash for a second or two on commercials for pickup trucks or acid reflux drugs. The lines of print are there too fleetingly to even count, much less read. Does that constitute “legal notice” to the consumer sufficient to disclaim any representations expressed or implied in the commercial? If not, why are they there? Has there ever been a civil action in which such notice was deemed relevant to the case?

If this does not constitute legal notice, why is it there?

Fine print notice in commercials is usually to comply with regulations, not as a matter of contract law. Often, the regulations simply require the information to be disclosed and set no limits on how–hence the rapid fire talk and small print. The FDA is currently considering regulations that would make the information more accessible by requiring less (you don’t have to say every single side effect) but setting minimal font size and speech speeds.

In contract law, there is a doctrine called unconscionability that deals, essentially, with unfair contracts. Unfairness implies something slightly less than is required for unconscionability but it’s the best lay term I can think of. A contract can be procedurally unconscionable (meaning the manner in which it is agreed is unreasonable), or substantively unconscionable (meaning the terms are unreasonable).

The classic law school unconscionability case is Williams v. Walker-Thomas Furniture, 350 F.2d 445 (D.C. Cir. 1965). A store that sold household goods on instalment contracts had a provision that (simplifying) said they could seize everything they sold you if you missed a payment on one item. A single mother missed a payment on a radio and they basically came and reposessed all the contents of her house. The court tossed the contract.

In the OP, you have a contract that might be both procedurally and substantively unconscionable. Burying a major term in fine print is a classic example of procedural unconscionability. The other party deceiving you about the contents of the contract so you don’t read it is another. Is the contract one of adhesion? That is, is there an opportunity to negotiate? For example, an apartment lease is usually a contract of adhesion because the apartment complex won’t rent to you if you scratch out the “no pets” clause. Relative bargaining power is another factor. In Williams, the store was the only place that offered sales to African-Americans in the town on credit, so they had no other options. Whether the parties are both sophisticated negotiators is another factor. Did you have a lawyer look over the contract before you signed it? Are you a businessperson who deals with contractual matters on a frequent basis? If so, you are more likely to have the contract enforced against you.

Inserting a completely one-sided and punitive provision like that is a good example of substantive unconscionability. Substantive unconscionability is simpler: is the contract so ridiculously one sided that enforcement would be unjust? In Williams, the contract was substantively unconscionable because it allowed the store to seize everything even if only one item was in default. Penalty clauses are allowed in contracts, but they must generally be proportional. You can contract for liquidated damages (that is, a set figure payable on breach) but not for five times the value of the contract itself.

ETA: ninja’d by Richard Parker.


(It’s surprisingly hard to come up with a ninja onomatopoeia. Perhaps because they are so silent?)

The large print giveth and the small print taketh away.

    Tom Waits "Step Right Up", Small Change (1976).

They’re also unspeakably violent. They speak Japanese, they do whatever they please, and if you tear off their mask, they’ll be smilin’.

Because you guys already hit the pitch out of the park with the unconscionable explanation, I am left to mention that these types of contracts are “contracts of adhesion,” which means that they are drafted by one party with the other party having essentially no opportunity to negotiate terms. This is itself legal, but it means that the terms of the contract are construed contra proferentem against the side that drafted the language – in other words, courts will interpret the language strictly against the contract drafters.

Our company policy is that we are ALWAYS willing to negotiate the terms of a contract, whether it’s a contract with an employee or with a customer. 99 times out of 100, the signer says “looks fine to me” and signs it. But for that 1% who want to make changes, we NEVER say “my way or the highway”.

The English common law, followed by many Commonwealth countries, is hesitant to allow penalty clauses of this type except in very limited circumstances (eg as a genuine attempt by both parties to calculate damages in advance, either in a monetary statement or by a formula). Except in those limited circumstances, penalty clauses are unenforceable. See the House of Lords decision in Dunlop Pneumatic Tyre Co.:

There’s also the fair notice principle: the more onerous a clause in the contract, the greater the onus on the party to draw it to the other party’s attention.

Lord Denning famously expressed this principle as the “red hand” notice in J. Spurling v Bradshaw:

IANAL, but my understanding is that essentially a contract is a meeting of minds and an exchange “this for that”. Trying to pull a fast one, like burying highly unusual and unacceptable terms in in a mountain of fine print, simply indicates that rather than coming to an agreement, the one side is trying to stuff a disagreeable term in by hiding it.

I recall reading some judgements where one element of interpreting a contract is “what did the parties believe they were agreeing to?”, and emails etc. are good indicators of where their thoughts lay. For your typical consumer contract, something totally out in left field obviously is not what the one side thought they were agreeing to. When you buy an item today, you expect that some merchants will say “no refunds” or “restocking fee” (a fraction of the total cost). $250 for a $17 item, for example, falls so far outside the realm of reasonable that no wonder it would be unconscionable unless the red hand pointed to it in large print. “No refunds” is a not unheard-of situation, but there are various consumer laws limiting that too (i.e. defective merchandise, cooling off times for door-to-door or phone sales, etc.)

Which makes me wonder how big companies get way with the “you can’t sue us, we go to our favorite arbitrators” as a fine print clause.

Mostly because those sorts of provisions typically do not name a specific arbitrator, or when they do, it is an industry-wide professional neutral arbitrator (such as the American Arbitration Association), as opposed to someone with a sweetheart deal with the big company. I know many construction contracts (and subcontracts) specify that disputes must be arbitrated and the entity most often used for this purpose is the American Arbitration Association, which is strictly neutral.

Requiring arbitration is fairly common with a lot of contracts. However, with most arbitration requirements, it is non-binding arbitration, which means that someone’s right to pursue the matter in a court of law is not foreclosed - just requires them to go through the extra step of private arbitration first (or in the middle of, depending on the circumstances). Car insurance policies typically require arbitration, for example.

Also, it is worth noting that in many jurisdictions, some or even all civil claims are required to go through arbitration and/or mediation (either with a private mediator or through a Court-appointed arbitrator) regardless of whether or not the underlying contract specifies it. Most Courts strongly favor alternative dispute resolution methods such as arbitration to cut down on their case load and backlog. For example, in Maricopa County Superior Court (the primary Court system in Phoenix, Arizona), if a matter meets the jurisdictional requirements for being in Superior Court at all, the vast majority of civil cases are urged by the Court to undergo some form of alternative dispute resolution (either mediation or arbitration) within a certain number of days (usually 90 days from the issuance of the 150 day order - so about 240 days from the date someone answered a complaint). If you don’t want to do private ADR (which is an expense many parties elect to forego), the Court will appoint an arbitrator for you.* Any civil complaint filed in Maricopa County must be filed with a notice declaring whether or not arbitration is required (usually pursuant to a contract). Parties can (and sometimes do) fight about whether or not arbitration is actually required, but the Court strongly prefers arbitration happen. Even if no arbitration is required, the Court most often requires parties to undergo a formal settlement conference and/or mediation well before the trial date. Again, if you don’t agree on a mediator between the parties, the Court will appoint one for you.

  • They do this by randomly assigning an attorney licensed to practice in Arizona with a business and/or personal address in Maricopa County to do it for the munificent sum of $35.00. You can imagine how popular this is with local attorneys. It’s basically pro bono work for civil attorneys. You should hear the thunderous bitching when one of the attorneys at my firm gets tagged. I had one guy get tagged six times in one summer - the first five he got stricken (one of the parties asked the Court to appoint someone else at random).