Ask HN: Why are contracts written so poorly? • Hacker News Board

Re: Ask HN: Why are contracts written so poorly?

#11

Post by Flankk » Fri, Apr 17, 2009, 10:51 AM UTC

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.

Re: Ask HN: Why are contracts written so poorly?

#12

Post by adilsaleem » Fri, Apr 17, 2009, 10:59 AM UTC

medianama wrote: post #10

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

Re: Ask HN: Why are contracts written so poorly?

#13

Post by lucumo » Fri, Apr 17, 2009, 11:15 AM UTC

mseebach wrote: post #9

lucumo wrote: post #8

Earlier quoted context omitted.

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 spi…

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...

Re: Ask HN: Why are contracts written so poorly?

#14

Post by watt » Fri, Apr 17, 2009, 11:15 AM UTC

mseebach wrote: post #9

lucumo wrote: post #8

Earlier quoted context omitted.

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 spi…

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.

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.

Re: Ask HN: Why are contracts written so poorly?

#15

Post by dctoedt » Fri, Apr 17, 2009, 11:56 AM UTC

lucumo wrote: post #13

mseebach wrote: post #9

Earlier quoted context omitted.

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 MERCHANTABILI…

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.

Re: Ask HN: Why are contracts written so poorly?

#16

Post by jgfoot » Fri, Apr 17, 2009, 11:58 AM UTC

noonespecial wrote: post #3

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 th…

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.

Re: Ask HN: Why are contracts written so poorly?

#17

Post by dctoedt » Fri, Apr 17, 2009, 12:04 PM UTC

noonespecial wrote: post #3

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 th…

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.

Re: Ask HN: Why are contracts written so poorly?

#18

Post by dctoedt » Fri, Apr 17, 2009, 12:08 PM UTC

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).

Re: Ask HN: Why are contracts written so poorly?

#19

Post by radu_floricica » Fri, Apr 17, 2009, 12:17 PM UTC

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.

Re: Ask HN: Why are contracts written so poorly?

#20

Post by jgfoot » Fri, Apr 17, 2009, 12:20 PM UTC

lucumo wrote: post #13

mseebach wrote: post #9

Earlier quoted context omitted.

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 MERCHANTABILI…

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