Contractually Speaking

Oct. 5, 2023

Put your hand up if you ever actually read rental contracts?
I know I don’t. And I was once a lawyer. (Tsk. Tsk.)
Who can blame us?
With all their “hereins”, “wherefors”, “thereofs” and “whatnots”, most rental contracts add up to one big wordy, complex mess.
It’s SO much faster and easier to tick “I agree” and get on with the rest of your life.
So, last weekend, when a friend visiting us at the farmhouse was presented with a bicycle rental contract that was short, simple, and to the point, I duly took notice. In a world of complexity and prolixity (how’s that for a 10-dollar word?), a clear agreement doesn’t just speak volumes, it positively shouts from the rafters.
Here’s what the bike rental contract said: 
I understand riding a bike can be a fabulous and rewarding experience.
I also understand that good things can happen while I am in possession of this rental bike, but bad things can also happen to me, my stuff, other people, and other people’s stuff.
I know that I am solely responsible for any and all things that happen (including the good parts!)
I had the brakes and gears on the bike I am renting demonstrated and explained to me, and I feel good and confident about riding it.
I understand that by signing or initialling this agreement I am also agreeing to everything on the reverse of this form, and I am releasing the Bicycle Company from any perceived liability or negligence.
I also understand that if anyone asks, I’ll tell them where I rented this terrific bike and enthusiastically extol the virtues of cycling and the Bicycle Company.

Needless to say, as a plain language advocate and practitioner, I LOVE this. 
The “reverse of the form” consists of 14 bullet points, including some fairly standard-sounding clauses like these:

  • You will not use a phone or mobile device while riding this bicycle.
  • If you break anything on the bike, you will be honest and tell us about it, and if fixing it involves major expense or time, you will pay for it.  
  • If you don’t return the bike at the agreed upon time (6pm or 2 pm), late fees will apply ($10/half hour, per bike). If you don’t return the bike at all: you bought it.

But also, these:

  • You will drink lots of water from the water bottle on your rented bike and not become dehydrated (hydrate or die!) 
  • You will not ride the bike in the sand (that means not on the beach), or you will clean the chain with your tongue!
  • You will try to ride bicycles more in your life and be a happier person.

Witty? Absolutely! Legally binding? Maybe not so much. But that’s what the “front side” is for.
With their clear, direct language, these … shall we say ... more unorthodox clauses catch the bike renter’s attention. And in the usual contract world of legalese and impenetrable sentences, that’s worth its weight in gold. (Besides, these clauses actually contain some sage words of wisdom.)
Compare the Bicycle Company’s rental agreement with these construction contract clauses, which appear in a recent article in The Clarity Journal.
This Contract shall be governed and construed in accordance with the laws of Malaysia and the Parties irrevocably submit to the exclusive jurisdiction of the courts of Malaysia.
(“Construction Contracts and blank cheques (checks)—then, now, and vision 2030” by Naseem Ameer Ali, The Clarity Journal, Number 85, 2023)
Ameer Ali, the author of the article, reveals that this 29-word sentence was actually an improvement over the original, which was a whopping 69 words!
Still, Ameer says, it could be improved further: Malaysian law applies to this contract.

That’s it. Just 6 words. Done and dusted.
Here’s another example—80 words in two sentences:
No modification, amendment or waiver of any of the provisions of this Agreement shall be valid unless it is made in writing by way of supplementary agreement specifically referring to this Agreement and duly signed by the Parties or its duly authorised representatives. The provision in respect of such amendment, variation or modification thereof shall be supplemental to and be read as an integral part of this Agreement which shall remain in full force and effect as between the Parties. 
The simple rewrite: No changes to any of these contract terms are valid unless the parties agree in writing. (1 sentence, 16 words)
This past June, the International Standards Association (ISO) published the world’s first plain language standard. Part 1: Governing principles and guidelines is based on the internationally accepted definition of “plain language.” Part 2 will address plain legal language.
Legal professionals of all stripes—lawyers, judges, professors, legal drafters, even law students—take note! If you haven’t already bought in to the idea of plain language, you will, in due course, be encouraged, exhorted and challenged to do exactly that.
In the meantime, the Bicycle Company can sit back, relax, and carry on, secure in the knowledge that they have this whole plain language thing covered.

Remember this: 
All documents, even legal contracts, can be simplified and streamlined by applying the four principles of plain language: information is relevant, findable, understandable, and usable.

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