Home » Contracts » If small print ‘terms and conditions’ require a PhD to read, should they be legally binding?

If small print ‘terms and conditions’ require a PhD to read, should they be legally binding?

10 May 2018

From The Conversation:

You may not realise it but you are signing legal agreements all the time. Think of all those “terms and conditions” boxes you tick when you buy new software or travel insurance. How many times have you tried to read these and not really understood that they were saying?

You’d not be alone in that. Our research outlines how insurance policies are incredibly difficult to understand. So difficult that you need a PhD to understand them.

Yet consumer law requires legal agreements to be transparent. This means that they need to be in plain, easy to understand language. If legal documents are not written in plain English, then they may not be legally binding – or at least the parts that are not transparent won’t be. So does this apply to those contracts you sign on a regular basis? And, if so, how do we measure how readable something is?

. . . .

Over the years, hundreds of different readability measures have been created for English and other languages.

. . . .

The choice of measures is complicated by the fact that different measures calculate readability in different ways. But broadly speaking the measures that we used are based on the number of words in a sentence, as well as the number of syllables or number of letters in the words. If a document has lots of words with multiple syllables and sentences with more words, then its readability will be less than one that has words with fewer syllables and shorter sentences.

There are lots of online tools to calculate readability. Even tools that try to produce the same measure, like the Flesch-Kincaid reading scores, can have significant discrepancies. One of the reasons for this is how the software counts number of words and syllables. For example, does the program count hi-tech as one or two words?

. . . .

All of the policies we tested needed a very high level of education to be fully understood. The most readable policy required almost 14 years of education (high school plus one year of university), while the least readable needed 19 years (PhD level). This suggests that at least some parts of these policies could be challenged on grounds of their transparency – no matter whether they are fair or not. This has important implications for consumers.

Based on these common measures, a reasonable conclusion might be that these policies are not written in clear and plain English. Not so in the UK. Readability scores do not have any legal effect in the UK – there isn’t a target score to beat.

This is because European case law requires courts to consider whether the contract clearly communicates its effects. A reading score may be good evidence that the effects cannot be understood by a consumer, but are not seen as the determining factor.

. . . .

In the US, however, there is a trend towards using reading scores to assess contracts. In Texas, for example, consumer banking contracts have to meet prescribed Flesch-Kincaid reading scores calculated by Microsoft Word. Similarly, in South Carolina loan contracts have a Flesch-Kincaid score of no higher than seventh grade.

Link to the rest at The Conversation and thanks to Nate at The Digital Reader for the tip.

PG decided to check some readability scores. He checked several documents by calculating their Flesch Kincaid Reading Ease scores. Fortunately, he quickly located a helpful website that did the calculations for him – here’s the link.

MS Word 2016 and Office 365 have an Editor feature, but, like the early versions of so many Microsoft features when first released, they’re a little clunky.

So, here are the documents and their Flesch Kincaid Reading Ease Score and Flesch Kincaid Grade Level Scores:

PG’s Standard Retainer Agreement for his Clients:

Flesch Kincaid Reading Ease – 47.4 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 10.9

PG’s standard introductory email sent to New Clients:

Flesch Kincaid Reading Ease – 66.8 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 7.1

Amazon KDP Terms and Conditions

Flesch Kincaid Reading Ease – 54.8 (0 to 100, higher is better)

Flesch Kincaid Grade Level – 9.5

Barnes & Noble Press Author Membership Agreement

Flesch-Kincaid reading ease score – 40.3 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 14

Big Five Publisher – A

Flesch-Kincaid reading ease score – 38.8 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 14.5

Major Publisher – B

Flesch-Kincaid reading ease score – 27.5 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 19.7

Major Romance Publisher

Flesch-Kincaid reading ease score 33.1 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 16.7

Contracts

15 Comments to “If small print ‘terms and conditions’ require a PhD to read, should they be legally binding?”

  1. Do you happen to know if there are specific requirements in the state of New York? Just curious since I think that’s where most publishers locate their contracts.

  2. I wonder what the numbers are for Reading East and Grade level for standard personal customer terms and conditions dictated by:
    Comcast
    Verizon
    Amazon.com
    Capital One Platinum Credit Card
    Texas standard apartment rental contract
    Ford
    Chevrolet
    Chrysler
    Mercedes Benz

  3. I’m not sure if this factors in, but I find it much easier to read through a contract in print than on a computer screen. Ten-or-so-page book contracts are easier to follow because they’re broken by pages, and it’s possible to compare them side-by-side with other contracts. Digital is WAY harder.

    • YMMV as they say.

      I prefer the computer screen because most contracts are written to make them ‘hard’ to read in the first place. A size and font change sometimes helps, as does giving yourself more space between lines. Then there’s the ability to do keyword searches.

      (and so much easier to email a copy to your lawyer friend before signing your life/rights away. 😉 )

  4. the other Diana

    Our health insurance policy is so convoluted that even the customer service “agents” have no idea what’s covered and what isn’t. And even once we figured out what’s covered, they seem to have the memory of a gerbil because we have the same “billing” issues for the EXACT SAME PROCEDURE the next month. This went on for about 6 months until the treatment ended.

    ETA: and this was for a treatment that THEY APPROVED OF in the first place and had been paying for about a year.

    I can’t imagine how much time (and money) is wasted because of this incompetence.

    • That’s not incompetence, Diana, that’s the business model of almost all insurance companies. They’re great for things like fires for houses, and great at selling premiums. But the standard practice is to deny, deny, deny at first instance. The CSRs have KPIs (Key Performance Indicators) that track if they approve or deny, and they have to stay within a range. Equally, they’re tracked for how long they spend on a claim before making a decision. Fast decision = good; fast denial = even better. And the same management tracks how many times you get told “no” before you go away and stop asking. Even for things they already approved. It isn’t money wasted — lots of people give up after one no, more after two, more after three, etc. Plus, in some jurisdictions, none of it is easily “appealed” for legal purposes as it is constantly in “adjudication”.

      It’s a sad business, pretty much for everyone, and the horror stories exist for the opposite way (such as people claiming expenses for their dog “Toby” on their health insurance).

      As part of my day job, I’ve been exposed to a bit more of the “insurance biz” for a certain type of claim, and even the well-intentioned can have those KPIs batting them in the wrong “policy” direction, at least from a social standpoint.

      Sorry you had to experience it though…

      P.

  5. Fantastic link PG. I ran one of my latest personal blog posts through it, and got 70.7 but then saw this wording:

    Your page (http://polywogg.ca/50by50-31-expand-my-volunteering/) has an average grade level of about 7. It should be easily understood by 12 to 13 year olds.

    Umm…wait a minute. I feel like it’s mocking me in there. 🙂

    PolyWogg

    • Felix J. Torres

      No mockery.
      You’re doing well. A bit more accessible than average.

      The average american adult reads at about 7th-8th grade level.

      “Governments may label as literate those individuals who can read a few thousand simple words they learned by sight in the first four grades in school. Other sources may term such individuals functionally illiterate if they are unable to use basic sources of written information like warning labels and driving directions.

      Thus, if this bottom quantile of the study is equated with the functionally illiterate, and these are then removed from those classified as literate, then the resultant literacy rate for the United States would be at most 65-85% depending on where in the basic, minimal competence quantile one sets the cutoff.

      The 15% figure for full literacy, equivalent to a university undergraduate level, is consistent with the notion that the “average” American reads at a 7th or 8th grade level which is also consistent with recommendations, guidelines, and norms of readability for medication directions, product information, and popular fiction. ”

      https://en.m.wikipedia.org/wiki/Literacy_in_the_United_States

      Accessibility is only a crime if you’re writing litfic and aspire to be the next James Joyce.

    • Inspired by your example, I decided to paste my latest blog post into the readability calculator. I was little worried. What if my prose proved to be impenetrable? That would be bad. I want it to be accessible and entertaining!

      Results…

      drum roll

      Flesch Reading Ease score: 69.8 (text scale)
      Flesch Reading Ease scored your text: fairly easy to read.

      Gunning Fog: 8.5 (text scale)
      Gunning Fog scored your text: fairly easy to read.

      Flesch-Kincaid Grade Level: 6.9
      Grade level: Seventh Grade.

      The Coleman-Liau Index: 9
      Grade level: Ninth Grade

      The SMOG Index: 6.6
      Grade level: Seventh Grade

      Automated Readability Index: 6.7
      Grade level: 11-13 yrs. old

      Linsear Write Formula : 6.9
      Grade level: Seventh Grade.

      Phew! 😉

      • Ha! I checked the post before that and got 77.8 on the Flesch Reading Ease score. I think I need not worry about being impenetrable. Except…I wonder what score my fiction would generate. 😉

  6. I hate to burst people’s bubbles over perceived reading levels, but when I helped to set up an NHS service, what our research showed was that the average reading age of user’s was 7.

    Our perceptions that everyone reads at around the age level of 11 to 13 is based on cognitive bias to do with mind reading and our theory that others have minds like our own.

    I hope that brief summary makes sense.

  7. This sort of reading-level issue can get amusingly rigid.

    Long, long ago, when we idealistic programmers sold a mainframe application to IBM to do stock & bond analysis, two droids from IBM-central came and paid us a visit (in the obligatory white shirts) to make sure we could write proper documentation. (For you younger folks, this is like getting a visit from the FBI.)

    As we were all Yalies at the time, we found their concern misplaced but agreed to use their word-processing program for the job. It had a “grade level for reading” analysis tool.

    We all almost came to blows over this. The application did 4-dimensional market analysis (product x date x price x class). The word “dimension” was considered by the word-processing program to be a 12th grade word, and they wanted (all) IBM consumer documents to be suitable for 8th grade readers.

    Trying to get an exception to use the word “dimension” in the documentation for a stock market application was like trying to get an exemption from the IRS, only worse. There was no outside-the-rules rational individual anywhere up their reporting chain that we could discover.

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