A modest proposal to fix contracts
Rescuing contracts from sprawling garbage legalese novellas masquerading as “agreements.”
Every time I click through one of those garbage legalese novellas you’re expected to say “I Agree” to before doing something totally normal and inconsequential, I’m reminded of the legendary Lenny Bruce bit “Eat, Sleep and Crap.”
In this bit, all civilization begins with agreements:
“Let’s see. I tell you what we’ll do. We’ll have a vote. We’ll sleep in Area A. Is that cool?”
“We’ll eat in Area B. Good?”
“We’ll throw a crap in area C. Good?”
This social contract is the foundation of civilization. It’s why you don’t die from fecal-oral bacterial transmission.
Naturally, the legal profession has put a little more detail into the idea of what constitutes a contract in the years since. As Stanford Law’s Mark Lemley writes in “The Benefit of the Bargain,” “A canonical contract is a written agreement negotiated between two sophisticated parties.”
But that’s really only an infinitesimal fraction of the contracts that we make day to day. When you buy a apple from the grocery store, that’s a contract: there’s an offer, an acceptance, and a “meeting of the minds.” You and the grocer both know what the terms of the contract are, even though neither of you discuss it.
The apple is now yours. You can sell it. You can bake a pie with it. You can throw it away. If it turns out to be covered in harmful bacteria or full of razor blades, you might be able to sue the grocer. But you can’t just go and get another apple. You can’t eat the apple and then return the core for a refund.
All of that stuff is governed by “implicit and explicit” rules, the “background norms” of contract law. Some of those background norms are common law. Some are statutory. Some have been codified in the Uniform Commercial Code and the Restatement of Contracts. When there is a dispute, judges filter it through all…