You're assuming that because a contract is simple you're more likely to understand it correctly. That is horribly misguided.
In all likelihood you don't fully understand contracts regardless of length because you're unaware of the entire legal environment they exist in. The reason contracts often have weird stilted phrases is that they have specific meanings established over decades if not centuries of legal battles over those semantics.
A good example for doing this right are the Creative Commons licenses: they come with a summary in plain English for humans and a full license text for the legal system.
Complicated deals (hell even simple deals) require complicated concise language. If you use simple language. You will still have to go to court to argue about what 'what' means in the context of your deal.
Legal documents are complicated because we live in a complicated world. And, humans are terrible communicators who have no idea what they want but they somehow "know" what the otherside meant when they agreed to the deal. Even though there are unforeseen circumstances, mistakes, course of conduct that is inconsistent with the contract, and so on.
If it was easy to do, it would be easy to do. Note, legalese is a bad thing, and modern American lawyering is trying to get away from it, but it still doesn't make things simple to understand, just less gobblygook filler language.
Maybe people could just agree on a canon of shorthand phrases (in clear english) that expand to legalese mumbo-jumbo. Then slap a huge disclaimer "this document uses ClearContract[tm] shorthand" on.
Seriously though, this problem is not limited to contracts. Most of the law is written in a convoluted way, because there's so much legacy code in there, and also because codifying real life is just such a complex undertaking.
I read somewhere that Steve Jobs tore up a long contract and demanded a new one that was one page long if the other party wanted to do business with Apple. Lots of people demanding such contracts are the only way things will change.
I can't imagine this happening, though, as lawyers would need to write these contracts and greatly simplifying contracts would probably put many of them out of a job.
In addition, many people with their shorter contracts would be shocked when a judge rules against their interpretation of the contract, and others will complicate their contracts to prevent the same thing happening to them. This is likely the process that led to the contracts we have now. Legalese is not intended to be clear and expressive, but as a kind of adversarial form of communication.
If the contract is long but most of it are examples, explanations of terms, and references to where and how things are defined then length would not be a problem.
The text of a contract can either be long and very explicit, or short but full of implicit assumptions. A DSL is the second kind: you encode those assumptions I the structure of the DSL and the text as written is based on all of those assumptions.
The problem than becomes that anyone who wants to understand the contract now has to read not just the contract as written, but also all of the definition of the DSL itself. This can actually be OK if the DSL is very commonly used, such as a DSL for contracts between two parties which sign new contracts every day.
But it is a huge waste of time for parties which rarely sign contacts, and is often used as an explicit moat to keep laymen from participating. If I give you a contract to sign that isn't even written in plain English, you will have no choice but to hire a lawyer specialized in understanding this contract DSL to advocate for you.
I imagine (savvy) lawyers actually love DSLs that purport to make contracts concise.
I think this sounds interesting in a lot of ways, but I question your assumption that a team of professional lawyers will agree that you "don't have to read the legalese to understand what your contracts are saying". Presumably the lawyers had a reason for putting the language in the contract to begin with. You might be able to summarize a contract in this way, but in the general case I don't think you can just "translate" the contract into plain English without glossing over parts of it, and parts that lawyers probably think are important details. It's a bit like software or mathematics in that way, the formal language serves some purpose.
- However, maybe the parts that get glossed over are covering edge cases that often don't matter?
The reason lawyers don't always OK this: contracts are lengthy and precise because the law values precision and negotiations/cases can literally turn on the position of a single comma. People don't naturally write like this.
If you write a contract with In Laymen's Terms next to the actual legal code, a court may in the future find that someone's inaccurate interpretation of your Laymen's Terms is controlling over the actual, unambiguous legal code.
Also: practically speaking, few enough people read ToS documents that, for the typical app, the only important audiences for it are a) in-house lawyers and b) people who want to sue you. It is probably unwise to optimize for the experience of people who want to sue you.
I don't know that it's about reading comprehension. I think most consumers could understand them if they put the effort in.
The problem is simply that people don't read this stuff in the first place. They simply sign without reading, assuming/hoping/praying that the terms are reasonable.
And really, can you blame them? Contracts are so vastly overused and they're made with the assumption that the consumer isn't going to read them. Most companies won't give you a two-page contract if a twenty-page contract will do. Many contracts are excessively long and are part of a sales process built on speed that assumes nobody will take the time to read before signing.
I would like to see a change in how contracts are handled, such that if one side knows the other side didn't read before signing, the contract is void. That wouldn't take care of everything (American Express's contract is probably handled by mail, so they can reasonably expect you to read the contract at leisure in your home before you sign) but it would put a stop to abusive situations in retail, where they had you a bunch of paperwork to sign. If they had to actually watch you and make sure you read it all before signing, the contracts would probably become a lot shorter. If people got used to reading the things, then it might even change their habits for other scenarios like doing stuff through the mail.
However, I also think it is completely insane that contracts are allowed to put any restrictions on either party's access to courts. The whole point of courts is to be the arbiter when something goes wrong. A clause saying that you must use some third-party arbitration service instead of the courts, or a clause saying that you agree not to participate in class-action lawsuits, should be completely unenforceable, just like a clause that says you agree to become the other party's slave.
I don't know if what you say about laws is correct, but it's certainly not a correct description of contracts. The general public is constantly confronted with utterly unreasonable legal documents: far too long, far too unclear, far too complex. The lawyers writing these, and the entities paying them, both know that the public will never read or understand them. It's pure cinicism.
There are three levels to understanding contracts.
1) The language itself.
Contracts are written in English (at least in the U.S.), so anyone with a strong understanding of English can read one top to bottom and comprehend what it is saying.
Experience in analyzing writing (like from a few college English courses) can help a lot, both in learning to quickly parse sentences, and in learning to infer motivations from the language on the page. You always want to be able to answer "why did they write it this way? What are they trying to get?"
2) What is typical and standard in contracts.
You can only get this from experience--from reading a lot of contracts--because it's often industry-specific.
For example, many software contracts, even 6 figure enterprise deals, include an ALL CAPS DISCLAIMER OF LIABILITY. THIS SOFTWARE IS OFFERED AS-IS AND WITHOUT WARRANTY. WE DON'T GUARANTEE THIS WILL WORK FOR YOUR PURPOSES, OR INDEED, WORK AT ALL.
I'm exaggerating, but not by much. This is a totally standard clause in the software industry, so whether or not you like it, you generally just have to swallow it if you want to do the deal
Likewise, most EULAs are very similar to one another. Once you've carefully read a few of them, you can quickly skim for the important bits (copyright, liability, data sharing) on new ones.
3) What the law says.
Contracts can't break the law. For example a contract that contains lies would be fraudulent. A contract that says you need to speed or drive drunk is not enforceable. A contract that says you can commit murder would not protect you from prosecution.
This is probably the hardest area to build knowledge, without going to law school. For me, it has helped to read news stories and good forums like HN. For example, I know that non-compete clauses in employment contracts are unenforceable in California, because so many people have said so.
There are some lawyers who post here--grellas for example--and AMAs from lawyers on Reddit are helpful too.
That doesn't seem to fix the underlying problem -- they understood/read the plain english version, just not the terms.
Honestly (and I'm guilty of this as much as anyone), I doubt they even read the terms. Here we have this huge thread about contract language being hard to understand, but if one doesn't take the time to read through, understand, and _remember_ all the terms of the agreement, how can one act on that information?
As many of the commenters pointed out the summary becomes a part of the agreement. I think it would even trump the legalese if there is some inconsistency between them.
What people fail to understand is that the contract/agreement itself is not the written text. Rather it is a legally binding relationship between 2 or more parties.
The better each party understands the terms and duties the less likely disputes are going to happen.
Legalese is a kind of legal FUD, which sometimes works and sometimes doesn't. Unfortunately most people are still scared of changing it.
All those legalese clauses you see in most agreements can be trumped by plain English or actually even common sense. The common law contract system allows judges to invalidate extremely unfair terms based on common sense and common practice as it requires both parties to perform some sort of equal exchange for a contract to be valid.
I believe that a well written plain language contract is a lot less likely to have disputes. I also believe that judges like the rest of us are perfectly able to read English as well, so I can only conclude that legalese is FUD.
See these two posts to learn more about how contracts work:
If you are interested in the history of legalese I warmly recommend the book http://www.partyofthefirstpart.com/ which is probably the funniest legal book I have ever read.
I'm on a bit of a crusade against legalese myself and at http://agree2.com we've tried to write our user agreement in plain english. We had it for public review last year (http://blog.extraeagle.com/2008/05/20/public-review-of-agree...) during a major rewrite and even allow you to propose changes to it during your signup.
And I don't mean this to bash on lawyers, I just mean things written by lawyers are NEVER going to be simple.
I think that’s a little unfair. When we were putting together the terms for a B2C web site I work on, our lawyer specifically and clearly advised us both to use plain English and to make sure any potentially surprising or unusual terms were prominent and early in the document.
The reasoning was simple and logical: ideally you want everyone to understand the deal the same way from the start, but if there is any subsequent disagreement that results in legal action, courts here in the UK are going to look at the contract pragmatically and try to determine what each party believed they were signing up for. As such, they are less likely to enforce a sneaky clause written in Latin on page 174 than they are a non-obvious but reasonable term that is right there in bold on the first page.
Ideally we would have written the terms to fit on a single screen/page instead of the probably 5x that we wound up with, but I’m not sure that’s realistic without much more standardisation written into laws than we have today, or at least recognised standard consumer contracts (which seems to be where the article here is going). We settled on having a “key points” summary up-front for those who do want to check the essentials but don’t want to wade through the whole thing, and our server logs suggest that a modest but noticeable fraction of our visitors do actually go to that page, spend a minute or two reading it, and then continue to sign up. I just wish some international treaty could harmonize consumer protection laws for the Internet age so a brief summary of key points was all we needed to write and was all our visitors needed to see because everything else would be reasonable by default.
A lot of this is driven by inertia. When a lawyer goes to write a contract, she'll typically start with a prior contract or form agreement. This will either be used as a template, or large chunks will be borrowed and modified as needed. In either case, the lawyer is unlikely to reword a bunch of provisions in an attempt to improve readability. It's like the legal version of Chesterton's Fence — if you don't know why a particular clause is phrased a particular way, you leave it as-is. Your client/partner might ding you if you include a boilerplate provision you shouldn't have, but you'd probably get in more trouble if you affirmatively reworded something and broke a cross-reference or other logical linkage that was supposed to remain in place.
As a result, language that was written a long time ago is still circulating in modern agreements. Note: I'm not defending any of this. As a lawer-turned-founder, I try to keep my agreements as short as possible!
I agree that the language is not exact. The problem with law and court cases is that two judges with the same contract might come to different conclusions about said contract. This occurs even when the contract is spelled out in legalese.
I think the nature of the article is more for a web developer that either does not have the money for a decent lawyer or who would go and do the project without some kind of protective contract in place because they did not think that a contract was necessary for normal business.
BTW: The patent contract is a good, readable contract and I like it.
In all likelihood you don't fully understand contracts regardless of length because you're unaware of the entire legal environment they exist in. The reason contracts often have weird stilted phrases is that they have specific meanings established over decades if not centuries of legal battles over those semantics.
A good example for doing this right are the Creative Commons licenses: they come with a summary in plain English for humans and a full license text for the legal system.
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