Fair contract activist Theresa Amato. (Courtesy of Citizens in Charge Foundation.)
Imagine you’ve clicked on your computer screen to accept a contract to purchase a good or service—a contract, you only realize later, that’s straight out of Kafka. The widget you’ve bought turns out to be a nightmare. You take to Yelp.com to complain about your experience—but lo, according to the contract you have given up your free speech rights to criticize the product. Let’s also say, in a fit of responsibility, (a bit fantastic, I know) you happened to have printed out this contract before you “signed” it, though you certainly hadn’t read through the thing, which is written, literally, on a “twenty-seventh grade” reading level. Well, you read it now (perhaps with the help of a friend who’s completed the twenty-seventh grade). And you see that there was nothing in the contract limiting your right to free speech at the moment you signed it. That part was added later. Your friend with the twenty-seventh-grade education points to the clause in the contract in which you’ve granted this vendor-from-hell the right to modify the terms of the contract, unilaterally, at any time into the vast limitless future.
Others, you realize, must have had the same problem with this lemon of a product. You begin canvassing the possibility of a class action suit. But you guessed it: the contract you agreed to waived your right to class action as well.
You study this gorgon of a text to figure out what other monstrosities lie within—and discover this: you’ve waived away your right to the privacy of certain information, too. Shocked, you resolve: never again. You realize that when you buy a product or service, you’re also buying the contract that goes with it. So you’ll comparison shop. You think about how, when you rent a car, you have to sign and initial all that contract language you have no time to read with eight people behind you in line at the airport. So you call all the big rental car companies to get copies of their standard boilerplate contracts to read at your leisure—but not one would e-mail you the contract. You’re told it just isn’t done.
The upshot of this horror story? Maybe you’ve figured it out by now. The “you” above is actually you. You, dear reader, have almost certainly signed a contract exactly like this. You may even have done so today.
“Fine print,” or “boilerplate,” contracts have been interwoven into the fabric of our modern commercial society for decades. In recent years, however, they become more and more deliberately obfuscating—and, thanks to business-friendly court decisions more and more aggressive in their intent to deprive customers of all sorts of rights of redress. Recently I sat down to talk to an activist who’s doing something about it. When Theresa Amato of Faircontracts.org, who sat with me recently for an interview, told me about this business of companies reserving—and exercising—the right to change contracts after their customers have signed them, and courts upholding that right, I paused a bit. I said I was speechless. “Yes,” she replied. “You should be speechless. And so should everyone.” She laughs—in a laughing-to-keep-from-crying kind of way: “To call this fine print ‘contracts’ is almost a misnomer.” She corrects herself: “It is a misnomer, according to contract theory, because there’s no mutual consent there.”