

Ask HN: Why are contracts written so poorly? - adilsaleem

I have been working on writing a contract/proposal. So I compiled the things to include in contract, then I looked at a template to write them down formally.<p>However, I have been going through this template for over 4 hours and still unable to understand a single line because its just so bad english.<p>I am kind of irritated &#38; angry at the same time. We are all told that we should write proper, concise, accurate and clear. But when it comes to writing contracts where everything should be crystal clear, we have to revert to writing jumbled up phrases, 10 lines long sentences and highly complicated words.<p>I feel that there is a huge gap between how people/companies interact with each other now and the formalities of paper work. Perhaps an opportunity of a startup that would introduce a new way of writing contracts
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noonespecial
_However, I have been going through this template for over 4 hours and still
unable to understand a single line because its just so bad english._

Contracts are not actually english, although they may contain familiar words.
Contracts are actually a kind of code designed to be run in a courtroom. Many
of the silly sounding words and phrases are actually reserved words in this
code and have special meanings.

Sometimes the obfuscation is deliberate on the part of the legal profession in
order to keep them all employed. (At least there is no incentive for them to
make it simpler.)

Don't feel bad. Imagine how a lawyer would feel if confronted by a large perl
script that his entire livelihood may or may not depend on. :)

~~~
jgfoot
I am a lawyer, and I also write Perl (although I am more partial to Python or
JavaScript and when I am feeling really smart I work in Haskell).

Contracts are English, and there is no reason why a skilled, competent lawyer
cannot write a contract that is both easy for non-lawyers to understand and
also enforceable in Court. There are lots of bad contracts out there because
there aren't many clients willing to pay a lawyer to re-engineer poorly
written contracts that are nonetheless believed to "work," i.e. be interpreted
by a court in a predictable manner. Every experienced coder has seen the same
phenomenon: if a body of code has been written, re-written, and patched over
time, it probably looks pretty awful now and could stand a good deal of
refactoring, but does anyone do that? Witness the OP, who apparently found a
form somewhere and is trying to edit it to his purposes.

It's not like contracts are written in a secret language. There is a
background body of knowledge that is helpful to have in writing and reading
them, but it is also crucial to understand the industry involved.

~~~
rodrigo
Offtopic, im an Hacker/lawyer myself, im interested to get your hindsigth on
being that. for starters, do you use your coding skills in law related
matters?

------
systemtrigger
It's a problem. No modern man understands all his written obligations.

> Perhaps an opportunity of a startup that would introduce a new way of
> writing contracts

Yes! Every contract I've ever seen is just an analog program, a decision tree
really. Legal concepts are mostly classes. Since you can do things like
multiple inheritance with OO you should be able to mimic contract law in a
program. But is designing such a service lucrative?

The hardest language in contracts - apart from all the _whereupons_ and nods
to the Magna Carta - has to do with contingency planning and minor details.
It's all the "if A then B when (C | D)" cover-your-ass reserve. That stuff can
get pretty terse and for most people it's a total waste of time to muddle
through, so we just sign it and hope it didn't give away our wife as chattel.
Of course when we cut out these complexities our contracts might not be as
watertight. But I think this should be a judgment call between the
participants. What good is a "safe" agreement if no one but a judge can
understand it?

You would probably want to focus on a small, profitable subset of contracts.
Take web startup investing. There ought to be a way for Startup X to have a
form on its site that lets me invest in their company. Maybe that's just too
wild of an idea for 2009 but if startups become financially transparent -- I
mean really transparent -- micro investing is bound to happen. Government
loopholes notwithstanding.

------
medianama
You'll get used to it. Its always difficult understanding/negotiating contract
for the first few times.

I started liking that language after going through that process a few times.

Tip: Try to read as slow as you can and don't miss any word/phrase. Look up
dictionary if you need to.

~~~
adilsaleem
I am already doing that. Ive taken the day off from work and just reading it
section by section, sentence by sentence. But its really hard to understand

------
dctoedt
It takes some work, but contracts can be expressed in short, clear sentences
and paragraphs. A leading proponent of this style is Ken Adams (see
<http://www.adamsdrafting.com>),

In the interest of promoting "code reuse" by contract drafters, I've been
building a community form file of contract forms and clauses - see
<http://www.firstdrafter.com> (in progress).

------
quellhorst
The problems with contracts are that they are written for lawyers by lawyers.
Not the actual users of the documents.

There is a 'plain english' style that is much better than the standard
legalese.

<http://www.cap-press.com/books/1476>

------
johnnydollar
Think of Legalese as C++ for the law. Very powerful, often verbose, and very
easy to get into trouble if you don't understand how it works.

Many awkward sounding phrases actually refer to a specific case law precedent.
Judges are disinclined to contradict a previous ruling. By inserting the
phrase into a contract and both parties agreeing to the contract you actually
save time/money because when it comes time to sue the issue has already been
decided by the phrase. The court just needs to determine if the facts fit the
previous case law.

Think of these awkward sounding phrases as macros that other people have
written over decades and now belong to the common code base called case law.
They might be very difficult to understand at first, but their near universal
meaning makes them more valuable than writing your own 'clearer' version. If
your version goes to court the judge will have to interpret your new language
instead of referring to prior case law. Since most judges are very busy and
you clearly don't know what you were doing they will probably ignore your
language. Just pray you didn't let the other party insert theirs.

What's more each type of law has it's own specific phrases. A construction law
attorney was explaining to me that the specific phrase 'workmanlike
performance' can create a warranty that may not be implied by law for the
specific services at issue. But 'does good job' isn't the same thing.

~~~
dctoedt
> [Many awkward sounding phrases] might be very difficult to understand at
> first, but their near universal meaning makes them more valuable than
> writing your own 'clearer' version.

The modern trend is unmistakably in favor of plain English. See, e.g., the
work of legal-writing guru Bryan Garner, who recently co-authored a book on
the subject with Justice Scalia.

As Ken Adams rightly points out: "Caselaw is full of instances of courts
displaying a poor grasp of semantics. It would be foolhardy to rely on courts
to be arbiters of everyday language." He also notes that "[c]ourts in
different jurisdictions have seen different meanings in everyday usages. ...
relying on courts to determine the meaning of everyday usages is to invite
inconsistency." See <http://adamsdrafting.com/system/2009/03/29/mscd-outside-
us/>

The SEC has also been weighing in: For 10 years now, the Commission has
required securities filings to be written in plain English, and has bounced
more than a few that aren't. See
<http://library.findlaw.com/1999/Jun/1/127259.html>.

------
moeffju
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.

~~~
lucumo
_> 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._

Well, they already use include files, so why not? :-)

------
adilsaleem
I wish someone invented python for contracts :)

------
Flankk
Legalese is formal English intended to be very specific with respect to the
Law. Terms used in a contract are often described in a definition section at
the start of the contract. The contract will make more sense when you read the
definitions first. However, contracts are designed to be legally sound; they
are not designed for readability.

I can't help but point at the spelling and grammatical errors in your post as
some of the issue in your understanding. Nonetheless, contracts are a daunting
read for most anyone.

------
radu_floricica
OP should clarify this, but i'm pretty sure he's not referring to legalese in
particular, but simply bad English. As in grammatically incorrect and badly
written. I've seen it too.

------
jodrellblank
I sometimes wish it was as simple as saying "this contract to be interpreted
in the spirit of the following examples", and then a small summary + examples.

~~~
lucumo
You see, I don't get it. Contracts specify a deal between two or more
entities. If these entities disagree on a matter, they can go to court. The
court can decide the matter based on terms in the contract.

If the contract is not in legalese, but is in normal clear English, a court
should (and I'll assume it _would_ ) decide the same way. If the "clear
English" is somehow ambiguous, the court should decide it in the spirit of
what parties most likely meant when they signed the contract. It can determine
that on little clues in the language, but also on accompanying letters, or
even on what is considered normal behaviour in the same kind of situation.

So, why doesn't it work like that? Why is everybody so afraid to write clear
English which describes what we mean?

I look upon this with a foreigner's eye. I have no problem reading most Dutch
contracts and even laws that come my way. It takes longer to read than an
average news paper article, but I can figure it out quite easily. I'm well
educated, but I don't have a law degree.

~~~
mseebach
Legalese is English (or whatever language) evolved by trial and error over
several decades to be as unambiguous as possible.

Thing is, contracts are for when you get in a fight, and once you're there,
figuring out in a fair manner what spirit you were in when signing is an
incredibly hard problem.

~~~
lucumo
So what's the difference between:

"NO WARRANTY

11\. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR
THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE
STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE
PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE,
YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

12\. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING
WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR
REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES,
INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO
LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR
THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS),
EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES."

And:

"There is no warranty on this software to the extent permitted by applicable
law. The copyright holder is not liable for any damages."

And what's with the capitals on that clause? I don't believe for a second it's
less valid if not in capitals...

~~~
jgfoot
Ah, warranty disclaimers. Here, lawyers are limited in how they may write
contracts, because consumer protection laws require that disclaimers of
warranty must be written in a certain stylized manner that is in theory easier
for otherwise unsophisticated consumers to read. What's with the capitals? The
Uniform Commercial Code says that a disclaimer of warranty in a contract of
sale must be "conspicuous" to be valid. It gives only one example of how
something can be conspicuous: all capitals. Believe it or not, there are cases
dealing with whether, for example, lower-case boldface printed on the opposite
side of the signature page is "conspicuous." This was part of a pro-consumer
movement, designed to help the little guy by making it hard to hide damaging
parts of a contract--the part that says "you're on your own if this thing
breaks." This all-caps rule has held out over decades, despite the innovation
of several improved typesetting techniques and significant improvements in
literacy since the 1930s, when most states enacted this statute.

The UCC also says that using the words "as is" is an effective way to disclaim
warranties. So, lawyers put that in. Your version doesn't. That doesn't make
yours wrong. It does marginally reduce the probability that your version will
work in court. So, most lawyers keep it in.

Curious? Read more: <http://www.law.cornell.edu/ucc/2/2-316.html>

~~~
lucumo
Thank you for the explanation.

It's somewhat ironic that there is an "it should be easy to spot" kind of
rule, but not an equivalent "it should be easy to comprehend". In theory it
could be printed in a 2cm font and be completely unreadable at the same time
:(

