Duty to Read a Contract
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What Is the Duty to Read a Contract?
Parties have the duty to read the contracts they enter into. The duty to read a contract is the assumption that both parties have read the agreement they consented to. The duty to read can be a problem if one of the parties signs an adhesion contract without having actually read and understood the terms of the agreement.
Is the Duty to Read Absolute?
No. The duty to read can be raised, lowered, or even voided, depending on the case.
The duty to read is typically voided if the contract is considered unconscionable, if the contract violates a public policy, or if the author of the contract has reason to believe that the other party would not agree to the terms if they were aware of those terms.
For example, if Joe writes a contract which requires Betty to sacrifice her first-born child and Joe knows that Betty is a good mother, that term would not be enforced even if Betty had signed the contract. The duty to read would also be void because human sacrifice violates public policy against murder.
The duty is lowered if the author of the contract attempted to deceive the other party or if the terms are not reasonably clear.
For example, suppose Joe owns an airline and wants to release himself from liability for choking hazards while serving meals during the flights. If Joe puts his liability waiver on a webpage which doesn’t have any links back to the specific page which contains the waiver, the customers’ duty to read can exclude that liability waiver.
What If the Author Hides the Contract Terms?
The author of the contract cannot hide a specific term of a contract. First, as stated above, the term would be automatically void. Second, the author of the contract has a parallel duty to call attention to the terms of a contract. This is especially important if the adhesion contract is different than adhesion contracts of similar agreements.
For example, suppose that Joe uses standardized contracts for his social networking website. This contract is not different from contracts found on more popular websites, except that Joe’s contract requires that users who post pornography pay Joe $500 for each image or video. Joe has the duty to highlight this penalty to people who use his website. Joe can put the term in different colors, put the term at the front of the contract, or anything else which would draw the reader’s attention to the penalty.
What Factors Do Courts Consider When Deciding If the Duty to Read Applies?
Courts look at the totality of the circumstances to determine if a party has to read the contract before it can be enforced or voided. These factors include, but are not limited to:
- Type of relationship between the parties
- Whether the author of the contract fulfilled the duty to call attention
- The language of the contract
- How the contract or contract term was presented
- Location where the contract was signed
- The parties’ intentions
Should I Consult a Lawyer About a Duty to Read Contract Dispute?
Contract law can be quite complicated and determining whether a party has to read a contract for it to be enforceable can be especially tricky. A business attorney can assist you in this determination and explain to you the merits of your case. Additionally, every state has different procedures for filing a lawsuit. An attorney can help you conform to the applicable procedural rules and collect all the proper documents to contest or enforce a contract.
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Last Modified: 02-04-2014 12:39 PM PST
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