128 Pages Posted: 2 May 2015 Last revised: 14 Jul 2015
Date Written: April 30, 2015
Contract disputes frequently call on courts to resolve conflicts arising out of interpretative differences. In these disputes, the party at the bad end of a deal typically contends that the parties meant their contract to have a meaning other than the one that led to the unfavorable result. To this end, the complaining party argues that particular terms are ambiguous, and that the ambiguity should be resolved in a way that yields a more favorable outcome. Whether a contract’s terms are ambiguous is a determination for the court to make.
But a battle wages over the appropriate method for making this determination. While some courts confine their analysis to the contract’s four corners (that is, a term will be deemed ambiguous if its meaning cannot be gleaned from the document itself), others consider evidence extrinsic to the document to determine whether terms are reasonably susceptible to more than one meaning. Under either approach, if the court determines that terms are ambiguous, it will resolve ambiguity according to an objective reasonable person standard. But subjective elements influence decision makers in even the most earnest endeavors to decide objectively.
In this Note, I propose the novel concept that crowdsourcing can aid courts both in determining whether contract ambiguity exists and in resolving ambiguities objectively. Courts that accept extrinsic evidence as part of their ambiguity analysis could look to how the crowd interprets the agreement: if crowd workers cannot agree on a particular term’s meaning, the court may accept this as evidence that the term is ambiguous. Similarly, crowd agreement on a particular term’s meaning can supply the court with a reasonably objective interpretation of that term.
To reach this analysis, I first survey the general online contracting landscape. Because the note relies on data derived from analysis of website privacy policies, I specifically examine the extent to which privacy policies can be enforced as legally binding contracts. A finding that privacy policies are rarely enforced as such highlights a flaw in the notice and choice privacy regime that calls its legitimacy into question. I note that even if the crowdsourcing concept would not be adopted by courts, either the concept itself or theoretical questions is raises might prove useful for other adjudicators.
Keywords: contracts, privacy, privacy policies, crowdsourcing, interpretation
Suggested Citation: Suggested Citation