Reading Time: 6 minutes
We are getting some work done, a bit of gardening. It’s landscaping, which is mostly a word that I use when it’s “more gardening than I want to do myself” because, while I love gardening, I’m an incrementalist. A new plant here, a repotted one over there. We are going to plant out our front yard with native plants and some tweaks to the layout to enable it to retain water. The contractor we’re working with sent us a document. It will bind us legally but it would horrify a contracts professor.
My wife is managing the contact with the master gardener and so, when she shared the contract out to our internal network, she let me know and asked me what I thought of it as a legal document. I am always curious about choices people make when creating a contract. At one end, you have people like Realtors
who have a form contract, largely regulated by consumer protection laws. This is the form-based end of the contract spectrum, where software could completely replace any human assistance needed in filling out the form. At the other end are the entirely custom (or “bespoke“, as some folks insist on but which sounds elitist to me) contracts where someone has clearly just done the best they can.
Don’t Let It Happen Again
It has become a bit of a laugh in our family as I have reviewed all of the leases the kids have been asked to sign. It’s a good reminder to let them know that they may be able to ask for a contract to be changed but also that, largely, if the person with the contract has what you want, you may not have much choice in the contract terms. Even taking into account this uneven power dynamic, we have enjoyed the very personal attempts to use contracts to solve very specific problems, like a dedicated clause to water beds:
WATER BEDS. Water beds are prohibited unless insured by renters insurance. The cost of repairing damage resulting from use of same shall be borne by the LESSEES for damaged premises, and such costs must be paid within five (5) days from the receipt of notice.
It is often the specificity that seems unnecessary, but perhaps when you are renting to young adults, older adults feel like some of this has to be spelled out. I feel like, in a lawyer-drafted contract, this could be written a bit more directly, without it sounding like someone repeating themselves:
Tenant(s) agrees to pay to open and/or repair all clogged drains, toilets, sinks, and traps caused by Tenant’s actions. Tenant agrees to keep a toilet plunger and a sink “Zip It” to clear the toilet, shower, and sink drains if necessary. FEMININE PRODUCTS CAUSE BLOCKAGE OF THE SEWER LINES AND CANNOT BE FLUSHED DOWN THE TOILET. Please dispose of them properly by throwing them away. Flushing feminine products down the toilet WILL result in charges to the tenant. Minimum charge of $35.00 will be assessed to unclog a toilet.
I particularly like the mention of a specific product to be kept by the toilet to clear the drains. It is the attempt to solve for a specific problem, though, that always gets me:
We do not allow Tenant’s or their guests on the roof of the building. ANYONE TRESPASSING ON THE ROOF SHALL BE PROSECUTED TO THE FULLEST EXTENT OF THE LAW and will be evicted immediately. You will be held responsible for all damages, and you will also be subject to criminal prosecution for trespass. DO NOT GO ONTO THE ROOF OF THE BUILDING FOR ANY REASON. For everyone’s safety, please notify us immediately if you see anyone going onto the roof of the building, or in any way damaging, or vandalizing the property.
So, there you have it. Stay off the roof, kids. I think it’s the feeling that, instead of just setting out mutual obligations, these clauses start to veer into a parenting voice.
One lease was so bad that I ended up rewriting it in order to rebalance the language in favor of our kid and the friends that would be sharing the lease. The property owner seemed fine with it, which reinforced my sense that this was a transaction that was devoid of lawyers on both ends. I’m not always certain of that and I do wonder how contracts come to be. For example, does the lease start out written by a lawyer or coming from a form book and then transmogrifies over time? Or is the lease writer actually saying, “repeat this so and put it in all caps so they understand that, this time, we mean it!”
The reality is you can’t tell if a lawyer was involved. I have had contract from Thomson Reuters and RELX and other large vendors who are deep with lawyers. The contracts regularly ask me to agree to things that the supplier can’t determine compliance on — sure, I will agree to prohibit unauthorized access, but how will you measure that it’s unauthorized access if, say, you don’t know how to measure usage? — and yet they are in there to try to stake out that position. A lot of it is whistling past the graveyard. If these contracts were ever litigated, I think they’d look like Swiss cheese at the end once the unenforceable (on their face or without evidence to support them) provisions drop out.
But Is It A Contract
Offer. Acceptance. Peppercorn. People negotiate contracts and then negotiate the outcomes of those contracts every day. They may even say they have a contract because it feels like they do.
When I looked over the agreement we had received from the gardener, it was a mishmash. The document called itself a proposal. It had an itemized list of services and products to be delivered, and the costs for each. It had a place to sign. Offer, peppercorn, acceptance. Then it had a bunch of footnotes that were acting as clauses.
This is when it became a bit hairy and I think is probably not uncommon in documents created without lawyers. The first one introduced the notion of this proposal being a Note that was enforceable for collection. I’m assuming, due to the capitalization of Note, that the intent was to create a promissory note. But the sentence starts that “the holder of this invoice” (it’s not an invoice) will pay lawyer fees for the enforcement of the Note.
It also stated that the master gardener was the contracting party and that they were using a subcontractor for the physical work, the actual planting. I think a typical lawyered contract would not have mentioned the actual subcontractor’s name, and just referred to a generic sub-contractor, allowing one to be swapped in or out. Otherwise, if this is a contract, then I’m agreeing to that specific sub-contractor.
Is it a proposal? An invoice? A Note? A contract? Do words matter?
Words do matter. I was a newly minted law librarian living in Dallas when a door-to-door meat vendor drove up. He had a sweet deal: as he put it, everything was “literally free”. So I walked out to his truck to confirm that, in fact, I could just take something and it wouldn’t cost me any money. No surprise, when I got to his truck, “literally free” became not free at all. No sale. Contract? Maybe?
I don’t think the words really matter. In the same way as with our huge law library vendor contracts, the words mostly only matter if we decide to litigate. Otherwise they are guidelines for behavior: we pay an amount, we get certain things in return. As we move towards edge cases around performance — is someone “faculty” within the definition of “active users” or do we use discretion about what “is a member of the law school community” means — we are primarily agreeing to abide by the spirit of the agreement.
When an agreement is involved and no lawyers are, I think there is a greater need to lean on the spirit. The cost of business would skyrocket if each supplier had to have a lawyered contract. Lawyers as a professional group have shown they are not interested in that kind of business, if only by pricing them out of the market to provide it.
People who are not lawyers have still seen a ton of contracts in their lives, whether they have read them or not. Every commercial website probably has a terms and conditions, we have software contracts of adhesion that we accept when we use a product that we often do not have a choice to not use. I think it’s reasonable to expect that people who are engaged in business but who do not engage a lawyer may still feel like they know their way around building a contract.
That’s what this document felt like. It had the basics of a common law contract and then it supplemented those with a couple of smaller items. Clauses that dealt with specific delivery of service issues, for example. Or, in the case of the Note clause, a warning about payment terms (payment in thirds, 9% interest on overdue payments after 15 days) as well as enforcement terms for legal fees. That clause, especially because of the capitalized Note, felt like it had been lifted from a form contract (although probably not one related to this particular business arrangement). Anyone with a public library card can probably access a version of EBSCO’s online legal forms or an equivalent free-to-them supplier.
Not all contracts look like contracts. I think the only thing all contracts have, no matter how well crafted, is the expectation of performance. We perform our contracts no matter how well or poorly they are written. Perhaps that’s because there is an underlying sense of fairness, of not getting something for free or at someone else’s disadvantage, a bargained-for exchange.
The things I perceived as defects in the document I signed aren’t going to stop us from performing our part (which is mostly to stay out of the way and just pay for the work). The world turns based on these sorts of agreements, whether they’re enforceable contracts or not. It’s the spirit of agreement that matters more.
The legal profession could improve those agreements but they will never be able to scale their efforts to actually provide legal advice to everyone who needs it. There are days when I feel as though the whole access to justice focus — which tends to sit within the sphere of the courts and of lawyer representation, as opposed to truly unmet legal needs — would be better off just accepting that the legal profession isn’t part of the answer.
People who can afford lawyers and afford access to the court system are far fewer than the people who could benefit from legal advice. There isn’t an alternative middleware to solve this problem. It isn’t going to be artificial intelligence because that assumes that the people who lack internet access to legal forms are somehow going to be able to get access to AI. It isn’t going to be law firms, although I feel that there is an opportunity to extract financial support from them based on their leverage of their roles as officers of the court to become millionaires.
At the end of the day, we will continue to rely on people getting together and agreeing to an outcome, and performing their roles because that’s what people in a society do. It will not always be fair, especially when dealing with agreements that involve housing and other human rights expectations where the playing field is severely inequitable. But the world turns without lawyers and it will continue to do so.