The Duty to Read the Unreadable

42 Pages Posted: 14 Jan 2019 Last revised: 5 Dec 2019

See all articles by Uri Benoliel

Uri Benoliel

College of Law and Business - Ramat Gan Law School

Shmuel I. Becher

Victoria University of Wellington

Date Written: January 11, 2019

Abstract

The duty to read doctrine is a well-recognized building block of U.S. contract law. Under this doctrine, contracting parties are held responsible for the written terms of their contract, whether or not they actually read them. The application of the duty to read is especially interesting in the context of consumer contracts, which consumers generally do not read.

Under U.S. law, courts routinely impose this doctrine on consumers. However, the application of this doctrine to consumer contracts is unilateral. While consumers are expected and presumed to read their contracts, suppliers are generally not required to offer readable contracts. This asymmetry creates a serious public policy challenge. Put simply, consumers might be expected to read contracts that are, in fact, rather unreadable. This, in turn, undermines market efficiency and raises fairness concerns.

Many scholars have suggested that consumer contracts are indeed written in a way that dissuades consumers from reading them. This Article aims to empirically test whether this concern is justified. The Article focuses on the readability of an important and prevalent type of consumer agreement: the sign-in-wrap contract. Such contracts, which have already been the focal point of many legal battles, are routinely accepted by consumers when signing up for popular websites such as Facebook, Amazon, Uber, and Airbnb.

The Article applies well-established linguistic readability tests to the 500 most popular websites in the U.S. that use sign-in-wrap agreements. The results of this Article indicate, inter alia, that the average readability level of these agreements is comparable to the usual score of articles in academic journals, which typically do not target the general public. These disturbing empirical findings hence have significant implications on the design of consumer contract law.

Keywords: sign-in-wrap contracts, consumer contracts, duty to read, contracts' readability, information asymmetry, informed consumers

Suggested Citation

Benoliel, Uri and Becher, Shmuel I., The Duty to Read the Unreadable (January 11, 2019). 60 Boston College Law Review 2255 (2019). Available at SSRN: https://ssrn.com/abstract=3313837 or http://dx.doi.org/10.2139/ssrn.3313837

Uri Benoliel

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel

Shmuel I. Becher (Contact Author)

Victoria University of Wellington ( email )

P.O. Box 600
Wellington, 6140
New Zealand

HOME PAGE: http://www.victoria.ac.nz/sacl/about/staff/samuel-becher

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