Is There a 'Duty to Read'?
Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical, Jean Braucher, John Kidwell, & William C. Whitford eds., p. 315, Hart, 2013
31 Pages Posted: 26 Sep 2013
Date Written: 2013
The notion that there is in general contract law a “duty to read” persists in the decisions of American courts. This chapter explores the question of what it may mean today to say that there is a “duty to read,” and concludes by suggesting what role (if any) that doctrine should play in our present-day law of contract.
The chapter begins by examining various ways in which the “duty to read” is commonly articulated, and compares it to other contract law concepts: the “duty to bargain in good faith” and the “duty to mitigate damages.” It points out that, like the “duty to mitigate,” the “duty to read” (DTR) is not technically a “duty” but rather a limitation on a party’s ability to assert what would otherwise be available claims or defenses under the rules of contract law. Sometimes described as a “conclusive presumption,” the DTR is in practice more of a rebuttable presumption – a “presumption of knowing assent” – permitting the adhering/signing party to overcome in some situations the legal fiction that she has in fact read and understood whatever written agreement she has signed onto.
The chapter next considers a variety of ways in which the DTR may be countered or overcome. These include: interpretation (often “against the drafter”); lack of “true assent” for some reason (such as forgery, lack of authority, or duress); mistake, either mutual or unilateral; fraudulent misrepresentation (or wrongful nondisclosure) of either the nature or contents of the writing, or fraud in the inducement; and other doctrines such as reasonable expectations or unconscionability. The chapter also notes and evaluates policy arguments for the DTR rule, such as the law’s desire to insulate a written agreement from later challenge (similar to the justification for the parol evidence rule); application of the estoppel principle to protect a drafter who has relied on the other party’s representations of knowing assent; and the view that adherence to an agreement can properly be seen as a sort of “blanket assent” to its contents.
Having sketched the legal background of the DTR, the chapter then proceeds to examine a selection of some two dozen cases, all later than 2005, which discuss and in some cases rely on the DTR rule. In many of these cases the adhering party was indeed prevented by the DTR from defending against enforcement. In some, however, one of the defenses described above proved successful.
Finally, after thus enumerating the ways in which the DTR should not be applied, the chapter concludes by asking: If the DTR is seen as essentially a “rebuttable presumption of knowing assent,” what role should that principle play in protecting a written agreement from attack of one kind or another? Assuming we trust judges and juries to perform responsibly and fairly their respective fact-finding tasks, it seems all that remains is a probably noncontroversial proposition: One who knowingly and voluntarily assents to a contract whose terms are contained in a given writing should be held legally responsible for her actions by being held to those terms, in the absence of fraud, mistake, or other excusing cause.
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