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Most people do not fully understand their contracts. So why has it become the norm to give uninformed legal consent?
Legally binding documents, such as contracts, can have huge impacts on your personal and professional lives, yet I know that I do not understand the full extent of any contract I have signed. I also know I am not alone in this and that this is really problematic.
In case you were curious as to why legalese exists, because I certainly was, it is because of the manner in which rulings are often made based on prior court cases. So history and its language gets, quite literally, written into current law.
However, while this has a logical basis for all things regulation (where let us also remember — those discussing it tend to have a legal education), this is no reason for your employment contract with some cutting edge tech company, your 22nd floor apartment lease agreement, or your social media influencer agreement to contain the word ‘witnesseth.’
While looking further into this problem, I found there are many articles outlining how to avoid legalese and write in ‘plain English.’ While this is a great step in the right direction toward legal transparency and would be ideal, the problem is much more deeply rooted.
There is a strong advantage from the big players or those in positions of power to keep contracts as complicated as they are. Legalese is a tool to obscure legal documents, rather than clarify it. I understand that the legal profession has a much more elaborate history and I am by no means placing the blame for the intensely complicated jargon that currently exists, on lawyers. Rather, I argue that it is instead the product of predatory and societal norms set forth by large industries that take advantage of everyday people.
I came to this realization after working for several years in the modeling industry, I signed a plethora of contracts that signed away my rights to consent, my rights to work in other places, or my rights to even choose who I work for, while also giving up any say in what I could get charged for.
If the entire point of a contract is for two parties to enter into a mutual agreement, I don’t understand how it can be expected that the everyday individual is expected to understand a sentence such as:
“You agree to indemnify and hold harmless [brand] shareholders, officers, directors, employees, subsidiaries, affiliates, agencies and independent contractors from and against any and all claims, demands, suits, judgments, losses, or expenses of any nature whatsoever including reasonable attorneys fees arising directly or indirectly out of your Social Media Post, your participation in the Campaign or your breach of any of your representations, warranties or covenants contained in this Agreement.”
Not to mention, this is a single sentence coming from an 8 page agreement. And, yet, this clause is basically saying that you promise to cover all of their (the other party’s) losses if you did anything that brought any harm or negativity towards the brand. For additional context, there is no such clause that promises they have the same right towards you. Yet, none of this would be very clear or known to someone without a legal education.
Something I found really interesting, as well, when trying to understand one of my contracts was the notion of legal capacity. There is a clause that states that “you have the full right and authority to enter into this Agreement,” which in essence means that the individual signing the contract understands that they are entering into an agreement and is capable of making the decision (i.e., this is usually followed up by specific conditions, like older than 18, not in another legally binding contract that would make this one illegal…). Then, there is often a clause or concept referring to ‘contractual capacity’ which means that the individual understands the consequences of their contract — note, neither of these common clauses guarantee that the individual actually understands their contract. This is incomprehensible to me, you are 100% liable for all that you agree to in your contract, but are not expected to understand it completely. And, of course, to hire a lawyer will be a long and expensive process, leaving you with little options if you are striving for contractual transparency.
I do not think that every contract is created in a way to further any power imbalances, nor is that the wish of all authorities handing out contracts. I do, however, think some industries have taken the use of intentionally verbose and difficult to understand language to embed predatory and unfair clauses and practices. In fact, this has been happening for so long, that these practices have become standard. Abusive systems use legalese as an extra means to an end. I am not claiming that providing contracts with plain and simple explanations would solve deeply embedded systematic malpractices, but it’s a start, and it puts necessary tools in the hands of everyday people.
The core of this problem is a lack of consent, and it is not something we can continue to ignore. Democratizing law is a step towards a more equitable future.
-Dorothee Grant, CEO and Co-Founder of Kaveat