I’m sure you haven’t. This is especially true if you are buying something on the Internet. We ignore the hyperlink, tick the checkbox and click “Pay Now” and ninety-nine times out of a hundred, it doesn’t matter.
It doesn’t matter for two reasons: first, because you and the vendor are operating in good faith. They have a thing you want. You have money. The exchange occurs and, more often than not, that’s the end of the matter and whether or not you read the terms and conditions doesn’t matter in the slightest. Even in the event that you’re unhappy with your purchase, regardless of the terms and conditions, you can usually return the item for a refund or negotiate some sort of settlement.
The second reason it doesn’t matter is because an astonishing proportion of the terms and conditions for online transactions are utterly unenforceable. Sometimes this is because they apply to cross-border transactions where no trade agreement is in place to permit international dispute resolutions so if the aggrieved party isn’t prepared to instruct a lawyer in the home state of the other party, it’s never going anywhere. But more often, the Ts & Cs are unenforceable because they are so long, dull and irrelevant that it is unreasonable of the vendor to think that someone is going to read them in detail before committing to the purchase of a £3.00 pack of curtain hooks. Even for a more significant purchase, the process of “I give you money, you give me thing” is so well established in our culture that it is demonstrably unreasonable to try to slip anything contrary to that into fifteen pages of legalese.
I sometimes like to mess with vendors’ heads by reading their Ts & Cs, in detail, and then writing to them with corrections and suggestions. I recently wrote to a vendor of a digital business service – whose blushes I shall spare by leaving them nameless, but it wasn’t Codel Software – to point out that paragraph 17.5 of their terms and conditions slightly awkwardly ended in the middle of a sentence. Also, they used the term “employee” when I was pretty sure they didn’t mean it (I was right).
But how often do we stop and think about our own terms and conditions? I remember being handed a “contract of employment” when I began at Age UK Gloucestershire that was a startling twenty-four pages long. Now, this might be reasonable for the employment of someone engaged in complex, sensitive and high-value international financial transactions. But it’s a bit much for a local charity for older people. The social contract of “we give you money, you give us work” is just as well established in our culture as the contract between vendor and buyer. And we don’t have the law to give us an excuse, either. The Employment Rights Act 1996 starts, right at section 1, by listing the terms we must be told. And they aren’t many (although I’ll leave you to do your homework on what they are).
There are three problems with over-long contracts of employment:
- It looks like you’re trying to be confusing. Almost no one will read them, because they basically trust you. But at the same time, they will wonder what you’re trying to hide and quietly hope that it doesn’t affect them. And if anything in there ever looks like it’s going to cheat them or anyone they know, they will never trust you again.
- It’s very easy to make a drafting error with that many words. The contract I was given at Age UK Gloucestershire failed to state that my holiday entitlement was pro rata. It did say it in a paragraph header, but it also included a legalese paragraph that said that the paragraph heads were for convenience only and didn’t form part of the contract! Hoist by its own petard.
- It gives both parties the impression that everything is covered. It doesn’t matter, though, how many words you write. The “contract of employment” isn’t what’s written on the paper alone. It also includes all other undertakings made verbally, by email, through custom and practice and in any other form. If you agree something with your boss about how you work, it’s part of the contract.
Suffice to say, one of the first things I did after getting that “contract” was to re-issue the entire workforce new agreements, that weren’t called “contracts” (I prefer “statement of terms and conditions”, but your mileage may vary) and reduced twenty four pages to two.
I still suspect that no one reads them – at least, not beyond the sections on salary, hours and holiday – must as I know for a fact that hardly anyone bothers to read the Staff Handbook that I spent weeks re-writing. But at least I have the confidence that, if circumstances send someone scurrying to find the bit that covers whatever problem they are facing, they will either find it or they’ll know for sure that it isn’t there at all.