If Even The Best Legal Minds Don't Read Boilerplate Contracts… Why Are They Considered Binding?

from the just-wondering dept

Michael Scott points us to a discussion noting that famed circuit court judge Richard Posner has admitted that when he recently took out a mortgage, he didn’t bother reading the legal language, which leads to stories of many other lawyers admitting they don’t bother reading the legal language of many of the things they sign. And yet… those things are still considered binding. I think most people realize that the language of such things will almost never actually matter, but of course, when it does matter, it really does matter. And, of course, that leads to a general question: why do we even bother with all this ridiculous legal language if no one’s really agreeing to it?

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Comments on “If Even The Best Legal Minds Don't Read Boilerplate Contracts… Why Are They Considered Binding?”

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48 Comments
Anonymous Coward says:

One issue is that all major lenders and use the same contract language.
In order to be able to resell the mortgages in bulk, the buyers have to be sure that they do not need to read each one.
Therefore, Fannie Mae, among others, have standardized everything.
Also, these contracts are contracts of adhesion…”take it or leave it.” there is very little negotiation allowed, for the reasons above. But the advantage is that the courts will construe the language in the favor of the individual, rather than the lender.
Other contracts, not as standardized, but as most attorneys will tell you, “So what.” When individuals are negotiating, they have no real power.
When businesses have to sign contracts, you can bet they have lawyers reading and negotiating every word.
Then again “so what.”
Do you buy a car based on the car, or do you go in and read every word of the manual and the warranty before you buy, because there just may be a paragraph you don’t like.
You buy the car.

nasch (profile) says:

Re: Re:

You can change anything you want in a mortgage contract if both parties agree. It’s definitely not take it or leave it. I think on both of the houses I’ve bought I had to initial some changes that were made after the contracts were printed. The same applies to any other contract. Don’t like something in your employment contract? Cross it out and initial it. Your employer can accept or reject the change.

Anonymous Coward says:

Re: Re: Re:

You can change anything you want in a mortgage contract if both parties agree.

Of course you can, IF they agree. But most lenders just won’t as a matter policy. That’s the usual situation being discussed here.

It’s definitely not take it or leave it. I think on both of the houses I’ve bought I had to initial some changes that were made after the contracts were printed.

You HAD to? That sure sounds like “take it or leave it” to me.

Don’t like something in your employment contract? Cross it out and initial it. Your employer can accept or reject the change.

That’s a real good way to loose a job. My employer automatically rejects anyone who so even so much as *asks* to make a contract change (except for executive positions, I’m told).

nasch (profile) says:

Re: Re: Re: Re:

Of course you can, IF they agree. But most lenders just won’t as a matter policy. That’s the usual situation being discussed here.

I was thinking more of the contract to buy the house. But for the mortgage, what would you even want to change? You could fiddle with points vs. rate and stuff like that, and the bank would generally negotiate with you. I’m sure you could change the monthly payment date, you could possibly adjust the term (with consequences in other areas of course). The basics about being required to pay it back, consequences for defaulting, etc. probably not, but I would think most of it is open. I’ve never tried because everything was agreed on ahead of time.

You HAD to? That sure sounds like “take it or leave it” to me.

“Had to” meaning “had to initial them, refuse to sign, or negotiate over the change.” The other party requested a change (or there was a mistake), and it was then up to us to accept it or not. Which is exactly the negotiation process I was talking about.

That’s a real good way to loose a job.

Possibly. Don’t do it unless it’s something really important to you.

My employer automatically rejects anyone who so even so much as *asks* to make a contract change (except for executive positions, I’m told).

In this market I’m not surprised. If there were a labor shortage, highly skilled workers would just about be dictating terms to employers instead of the other way around. In a more balanced market, both parties would be willing to negotiate (or more likely to).

Richard Cauley (profile) says:

Boilerplate contracts

The previous commenter is right — the reason businesses use standard contract language is to have consistency. Often groups of businesses — like insurance companies — use the same language because courts have already decided what certain terms or clauses mean and there is consistency and predictability.

However, just because Judge Posner didn’t ready his mortgage contract doesn’t mean that he shouldn’t have — I know that when I bought my house and got my mortgage, I read everything (even though I knew I couldn’t change anything) just to know what I was getting into. There’s really no excuse for not reading a contract if it’s important to you and involves a lot of money. If the purchase agreement for you house is in “legalese,” spend 50 bucks and take it to an attorney who will explain it — it may save you a lot of heartache.

But I just don’t buy the argument that because most people are too lazy to read the contracts they sign, that the contracts shouldn’t be enforced. That’s like saying if I’m too lazy to change the oil in my car, I should get a free car when the engine burns up.

MrWilson says:

Re: Boilerplate contracts

“…courts have already decided what certain terms or clauses mean and there is consistency and predictability.”

Which is where the problem lies. The language has gotten so overgrown and nuanced that a normal person without a law degree cannot necessarily understand the meaning of the language in the contract.

Further, the consistency and predictability is only for the companies and the lawyers. There’s nothing consistent or predictable about contracts for individuals except that you’re likely getting screwed one way or another. The language is used to keep outsiders (i.e. normal people without law degrees) at a disadvantage.

If you have to hire a lawyer to explain it to you, then the system is already broken (or corrupted and self-perpetuating).

Even fighting unconscionable contract clauses after the fact requires a lawyer, i.e. a lot of money. All this need for lawyers makes asserting your rights cost prohibitive. More money + more lawyers = more rights. That’s the definition of a broken system.

Nick (profile) says:

Re: Re: Boilerplate contracts

It’s not designed to keep outsiders at a disadvantage anymore then HTML is. ‘Legalese’ is nothing more than a coding launguage for human legal interactions. It has scripts, basic librarys, and commands. The only difference is legalese has been in use for an extremly long time. With few patches and minimal rewrites. The system needs an overhaul. Imagine if instead of doing away with it, people still used BASIC. Just adding more code for every new feature. Eventually you’d be looking at millions of lines of code, and you’d need an eight year degree to understand it.
Every programing launguage has life span, I don’t know what would replace it, but a new Legal launguage needs to but created. (L++ maybe?)

Anonymous Coward says:

Re: Boilerplate contracts

If the purchase agreement for you house is in “legalese,” spend 50 bucks and take it to an attorney who will explain it — it may save you a lot of heartache.

That’s one cheap attorney! The last time I shopped around for an attorney to review a contract I couldn’t find one to do it for less than $400.

Anonymous Coward says:

Boilerplate contracts are like poker. Maybe your opponent can read something in your face. Maybe he’s bluffing. Maybe it’s bluster. Maybe he’s got an ace in his hand, and maybe he doesn’t. He seems like a nice guy. Maybe he is, and maybe he isn’t. Maybe he’s out for a friendly game and maybe he’s out for the kill.

You can’t know any of this from the legal text. That’s the rules of the game! It’s got to be there but it can’t tip the entire hand.

Anonymous Coward says:

The law, the instrument used by crooks to backtrack on their word, used and abused by people without morals or decency.

The law it is not important the trust is, choose with whom you make business with and you will rarely find yourself in a courtroom.

Old fashioned? maybe but it does work, the law is a poor substitute for honesty.

colin S says:

Good grief. As a former lawyer (and business affairs for a major) I can only shake my head in wonder at the negligence of some of the profession. It is not easy money. Lawyers are paid to read not just every word that’s there but (and more importantly) to look for what is not but should be there. THAT’s the hard part. Skimming the boiler plate is an invitation for a professional negligence claim.

Crackers.

Anonymous Coward says:

They don't like it when you read the contract

Having gone through one refinance where I insisted on reading the contract, I can say they don’t want you to read it.

The bank and the title company where we were doing the signing got quite upset at me for trying to read the contact they presented and threatened to delay the refinance if I didn’t just sign it.

They also don’t let you leave with the contract for good reason, so you are expected to just sign everything they push in front of you without taking the time to read it.

I don’t know if that is normal behavior, or just what you get in the San Francisco bay area. Either way it is pretty irresponsible of them.

Beta (profile) says:

Re: They don't like it when you read the contract

Which bank and which title company, so we’ll know for future reference.

Another big advantage the corporations have is practice. When I sat down to sign my mortgage papers I sort of expected them to be reasonable and fair. What I saw was a mass of fishhooks. One in particular was the clause that said that they could change the contract if it turned out to be “incorrect” — the contract they had written! — but I had no such power. The whole thing was non-negotiable; I could sign or I could walk away and start the whole process over again, with probably the same result.

How about a few standard, public-domain contract forms, along the lines of open-source software or cryptography. The lender says “we use mortgage for 12-A”, I do some research and find out that 12-A is simple, and that the court rulings on it have been consistent, and that various watchdog groups have looked it over and consider it fair. When I sit down, the contract is one page: “the parties agree to Registered Public Mortgage contract 12-A…”

PRMan (profile) says:

Re: Re:

Most good notaries that are present at your signing will be happy to tell you what each page means in a summary form.

Just ask them, “What am I signing here?” And they will reply, “You are allowing them to run your credit” or “check your tax returns” or whatever. These types of forms are very standardized. The main forms to look at are the long loan agreement form which will have the interest rate, prepayment penalties, etc. and the Good Faith Estimate, which will show you how much you are actually paying over the course of the loan.

I’m not in the industry, but I wrote software (including software to fill out these forms) for many years for several large lenders. I have refinanced multiple times myself as better rates have come along.

Anonymous Coward says:

BFD, this is just smark risk management. The time you invest in reading the contract should be proportionate to the probability of encountering a situation where it matters. Most people are not going to have a dispute and mortgage contracts are highly regulated, so I don’t see a problem.

There seems to be a latent black-or-white assumption that you either read every word or you read nothing. I agree that I didn’t read my mortgage in that I didn’t look at 95% of the paperwork I signed. However, I did look VERY carefully at two sections I really cared about. My girlfriend and I are relying on the right of survivability to pass ownership to the other should one of us die, so I checked that specifically, found it was wrong, and made them correct it. I also was very interested in the ability to prepay, so I made sure that was listed explicitly (It was).

abc gum says:

Re: Re: Re: Re:

“I hope you don’t really need that car as they may just decide that they no longer have one for you.”

What a wonderful ad campaign you have stumbled across. I’m sure the impact from the publicity gained from such an endeavour would be seen immediately upon the bottom line.
Brilliant – just brilliant!

Gene Cavanaugh (profile) says:

Mortgages

“A solution is better than a problem”.

You are clearly right about the problem – mortgage companies direct their attorneys to make the agreements so long and tedious that they are essentially unreadable to avoid people complaining (and to gain a legal advantage without warning the victim).

Now, what is the solution? I am an attorney – I have wrestled with this, and I don’t know!

Should we mandate a standard agreement (we have already taken steps in that direction) – the mortgage companies say that would eliminate needed avenues for borrowers.

Should we require short, readable instruments? How do we cover all the loopholes the unscrupulous would exploit?

Do we just not have mortgages (just kidding!).

We all know what the problem is; can someone suggest a SOLUTION? That’s what we DON’T have!

darryl says:

It's a BOILERPLATE,,, !!!

Maybe the best legal minds are just that, and boilerplate contracts are also JUST THAT.

Ofcourse, the best legal minds are not going to read something they have allready studied, read and learnt over and over again. In law school and in the thousands of cases that involve those standard “boilerplate” contracts.

I dont have to read or study how a resistor works every time I have to design a new circuit. The function of a resistor is ‘boilerplace’.

But you can bet most people who are not totally aware of the contract wording, (clients dont consider a contract ‘boilerplate’), its new and different, and you would be stupid if you signed something you did not understand.

The best legal minds allready understand the contract, there is no requirement for them to try to study it or understand it, as they allready do.

After all its a boilerplate contract.

A contract is an equial agreement between two consenting parties, or more than two. But its an agreement, that all parties have to sign.

The contract is just as binding for the writter of that contract than anyone else who signs onto the contract.

So ofcourse the best legal minds do not need to read/study/analyse (again) a standard ‘boilerplate’ contract as they allready have done so, and as its a standard ‘boilerplate’ contract they have allready read and understood it. And probably ruled on its contents many times, and analyised in detail many aspects of these standard contracts so often they could do it in their sleep.

By using a boilerplate contract, its using something standard, and common practice in the industry, its done so that it’s quicker and easier and more consistent.

Its done so highly paid judges DO NOT have to learn, and analyse obscure and convoluted contracts, that could and probably do hide important clauses.

No, the industry use standard practices, like all industries, they create ‘boilerplate’ methods that are well known by those skilled in the field.

Its not ‘boilerplate’ to a client, or too someone off the street buying a house, they have not studied those standard contracts in law school.

And you would be a fool to sign ANYTHING you have not read and fully understand.

The judges did not say they have never read, and do not understand boilerplate, or standard contracts, they just said they do not read every single word over and over again in a common, and well known legal document that they are allready extreemly knowledgable of.

So again, Mike another stawman. Trying to get out of contracts by claiming someone elses stupidity. If you sign a contract, it does not matter who else reads or understands that contract, its up to you to read, understand, and if you agree you sign.

If you dont understand the contract, how stupid are you to sign it !!!..
(well the judge did not read it so why should I).

(well the judge understands it, without reading it, but you DO NOT).

Its like saying if you see a judge breaking the law then its ok for you to also break that law, after all a judge did it !!.
(is that what you define as ‘fair use’) LOL..

Most, the vast majority of contracts that you enter into are not even written contracts, every time you purchase something from a shop for example you enter into a contract agreement with the vendor, that is an unwritten contract, therefore its ‘boilerplate’ by definition. You give the vendor a specific sum of money and he gives you something in return, the price tag on that item is a contract, that you can agree to enter into.

You do not ‘study’ or ‘read’ that contract beyond reading the value of the price tag.

You may try to vary the terms of the contract, and ask for a discount, and you will enter contract negiotations to vary that unwritten contract.

So again Mike, all you’re doing is building strawmen arguments, that dont mean anything and make little or no logical sense.. But its the weekend, and we all know you want us to buy into your very own paywall… if the quality of your work was better that may make sense. But I dont want to enter any unwritten contracts with you that you refust to read because some judge does not want to read something he has allready read hundreds of times and understands it far better than you could probably ever.

That’s why he’s the judge and you are not I guess.

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