Ask HN: Why are contracts written so poorly? | Hacker News Reader

Ask HN: Why are contracts written so poorly?

14 pointsadilsaleem29 comments

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.

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.

I am kind of irritated & 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.

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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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. :)

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.

what bothers me is that people consider lengthy, complex and un-understandable contracts better than easy and simple ones. having said that, a lot of people also consider weird looking code superior to simple but equivalent code

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?

The courtroom-code analogy is spot on. Convoluted contract language usually comes from not having a lot of time to put together a draft; the result is often the lawyer equivalent of spaghetti code. Trust me, lawyers and judges hate reading such contracts as much as anyone, just as programmers hate having to maintain someone else's hurriedly-drafted spaghetti code.

I'm putting my support behind this interpretation of the complaint.

I spent some time at a gov't subcontractor and the copy-paste version of cya was clear as day. Sometimes you'd see where search/replace failed and there would be other program names.

It was a mess and I'm fairly certain it was because of our size. Fighting a contract in court is an expensive and potentially reputation damaging prospect, so if you have significantly less resources at your disposal it is very likely that you won't be able to fight the baked in vagueness and contradiction.

Your analogy is more wrong than right. It is right in the sense that ordering from a menu at a restaurant can be a kind of code, but it is really just a subset of the common language useable by anyone. If you don't understand what you will get when you order, don't order it, because it might be crap; ask them and they will tell you what it is, in whatever common language is used in that restaurant.

A contract is a "meeting of minds", and the minds are the minds of the parties not the minds of lawyers and judges. If the parties can't understand it, it is not a contract, any more than the signature of an Alzheimer's patient is valid, and signing something not clear and plain is a bad idea.

In the Anglo-Saxon/British-American/Western/Modern or whatever you want to call it system of law, we do not have specialized codes that require experts to be intermediaries between parties to a contract.

Humanity has experimented with the specialized code / scribe / clerk way of doing law. Often when an advanced society does not have widespread literacy, there is a specialized class through which all legal actions must flow; but as the aphormism says, "the life of the law is in experience not logic", and however appealing to technical people those special codes and classes of experts might be, experience shows that the code / expert societies are replaced by the common language / accessible court system.

Enough bullshit philosophy and history: here's some actually useful advice. Collect example, well and simply written contracts. Start from example contracts in the Nolo publications or books like "Legal Forms for Everyone" by Carl W. Battle (ISBN 978-1-58115-451-1). If you have business contacts who have done similar contracts, ask them for a copy that you can use as a template.

After all, that is all the high-priced legal firms do. They have their collection of cribs of previous documents and they re-work and re-combine as needed.

This is not to belittle the legal profession or suggest you don't need a lawyer. Simply because you can express something in simple clear language and both parties agree, does not mean it will hold up in court or that it is a good idea.

> Imagine how a lawyer would feel if confronted by a large perl script that his entire livelihood may or may not depend on.

It would serve the fucker right! :-)

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.

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).

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.

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

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

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.

> [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.

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.

> 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? :-)

I wish someone invented python for contracts :)

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.

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.

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.

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.

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.

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...

All-caps text is a relic from the typewriter era -- it's about the only way (other than underlining) that a typewriter can meet a statutory requirement that warranty disclaimers be "conspicuous." Modern drafters, with laser printers and word processors, use bold-face type or even paragraph borders.

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

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 :(

Thank you very much for that link. That explains a lot. I guess it's up to us to create new precedence.

seconded. what is written in contract, only matters when there is dispute - when you decide to fight in court. and then you don't want to be disputing what was the "spirit" of thing.

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