Commercial Law Beats Out Crim for Excitement (Who Knew?)

My colleague, Carissa Byrne Hessick, was a guest blogger on PrawfsBlog last week.  Although she wrote several interesting posts in her field of criminal law, she was disappointed that she received by far the most comments on her “non-academic” post about buying a house. 

Far from being non-academic, the post and comments comprise a nice mini-debate on the virtues and pitfalls of reading contracts before you sign them.  Carissa’s post is about her realtor’s shock when she and her husband (also a law professor) actually read the various agreements she gave them to sign.  The reader responses give several accounts of the reasons why people don’t read consumer contracts.  The common issue of not understanding them anyway is undoubtedly less relevant for people who read legal blogs than for your average consumer, but even this legally sophisticated crowd had faced obstacles when attempting to read consumer contracts before signing.  It’s socially awkward.  Because so few people read these contracts, time for reading is rarely built into the process, and you usually have to read while the realtor or sales person sits impatiently and watches you.  One person compared those of us who read our contracts to people who cannot order restaurant meals without making a million changes and substitutions.  (I *wish* I could make a million changes and substitutions when I read a contract of adhesion.)

Another commenter suggested that people don’t read consumer contracts out of “despair.” As he put it:  “When sitting at a 3-hour closing, signing the purchase agreement on a car after negotiating for, what seems like days, what does reading the contract get you? There is little to no chance that anyone with whom you are dealing has authority to make any changes even if you do find ‘problems.’ Even if they do have authority, the only option they often present is that ‘We don't change contracts. But you are free to walk away and, after spending another 3 days negotiating, getting the next company to offer you the same language.’”

The final comment suggested that unrepresented consumers were better off not reading contracts of adhesion because not having a chance to read the contract could sometimes be a legal defense.  Hmm… that probably wouldn’t work too well for a lawyer who for studies contracts for a living.  I suppose I’ll have to continue my admittedly futile practice of being stared down by landlords and sales people everywhere.  How about Credit Slips readers? Do you read your consumer contracts?

Comments

[Elizabeth]

I read some of them, but not all. It depends on the circumstances. If I can get a copy beforehand, so I can actually take the time to read it without everyone watching me, I definitely read it. Otherwise, I read the ones that I might realistically want to walk away from or try to get changed. I don't usually read HIPAA privacy policies, for example, because it's not going to be possible to avoid or change them.

I was interested in reading the links you posted, but none of them go anywhere, except for Prof. Hessick's bio. Could you recheck them?

[Angie Littwin]

Sorry about that. I think I've fixed the problem. Please let me know if it happens again.

[Joe S.]

I'm a compulsive reader. Reading the contract actually did me some good once. I had an auto body problem. I went to the shop recommended by the insurer. The shop wanted me to sign a document waiving my right to sue for shoddy materials. I walked.

I then went to the shop recommended by my brother-in-law (a car nut.) They took the insurer's payment, did not demand a waiver of rights, and did a good job.