The Duty to Read the Unreadable

Abstract

The duty to read doctrine is a well-recognized building block of U.S. contract law. This doctrine holds contracting parties responsible for the written terms of their contracts, whether or not they actually read them. The application of this duty is especially tricky in the context of consumer contracts, which consumers generally do not read. Although courts routinely impose this doctrine on consumers, its application to consumer contracts is one-sided. Whereas consumers are expected and presumed to read their contracts, suppliers do not generally have a duty to draft readable contracts. This asymmetry creates a serious public policy challenge: consumers might be expected to read contracts that are, in fact, rather unreadable. This, in turn, undermines market efficiency and raises fairness concerns. Numerous scholars have suggested that consumer contracts are indeed written in a way that dissuades consumers from reading them. This Article aims to test empirically whether this concern is justified. The Article focuses on the readability of an important and prevalent type of consumer agreement: the sign-in-wrap contract. Consumers routinely accept such contracts, which have already been the focal point of many legal battles, when signing up for popular websites such as Facebook, Amazon, Uber, and Airbnb. The Article applies well-established linguistic readability tests to the five hundred most popular websites in the United States that use sign-in-wrap agreements. The results of this Article indicate, among other things, that the average readability level of these agreements is comparable to the usual score of articles in academic journals, which typically do not target the general public. These disturbing empirical findings hence have significant implications on the design of consumer contract law.