The Plain English Movement-an Attack on Legalese
| Jurisdiction | Colorado,United States |
| Citation | Vol. 8 No. 12 Pg. 2372 |
| Pages | 2372 |
| Publication year | 1979 |
1979, December, Pg. 2372. The Plain English Movement-An Attack on Legalese
The plain English movement has arrived. While this event has gone largely unheralded in Colorado, lawyers in other jurisdictions are actively discussing the "do's and don'ts" of drafting technique in an effort to cast an obligatory aura of simplicity over their finished products.
At present, the movement is most apparent in the consumer credit field. Simplified insurance policy forms have been on the scene for several years and plain English lease agreements have been appearing with increasing frequency. Whether this bodes well for the future is not yet clear, but it appears that the simplification idea is here to stay. A plain English bill was introduced in the 1978 Colorado legislative session and undoubtedly will be introduced again. This article briefly traces the history of the movement and suggests how and to what extent Colorado lawyers must cope with it.
Clarity in speech(fn1) and in legal writing(fn2) has long been a laudable goal. Even the formation of a valid contract minimally requires an understandable offer and acceptance.(fn3) Notions of adhesion contract and unconscionability were developed early in contract law to protect parties from enforcement of blatantly unreasonable provisions. A contract resulting from fairminded negotiation and reasonable comprehension of the terms has been the ideal, if not always the actual result. Ambiguous terms are interpreted so as to assure fairness to the weaker party,(fn4) and provisions are held void when the court finds they were not reasonably contemplated by one of the parties.(fn5)
Section 2-302 of the Uniform Commercial Code, which gave courts the power to police unconscionable contracts, added further support to the redefinition and reshaping of objectionable contract terms.(fn6) Progress has been slow, however, and the Commissioners on Uniform State Laws conceded this fact in the comments to § 237 of the 1973 Restatement of Contracts (Second).(fn7)
The Uniform Consumer Credit Code takes the concept of unconscionability even further. Section 5-108 provides:
(1) With respect to a transaction that is, gives rise to, or leads the debtor to believe will give rise to, a consumer credit transaction, if the court as a matter of law finds:
(a) The agreement or transaction to have been unconscionable at the
time it was made, or to have been induced by unconscionable conduct, the court may refuse to enforce the agreement; or
The 1974 version of the Uniform Consumer Credit Code(fn9) established various standards for determining unconscionable conduct. One of these standards is the "inability to understand the language of the agreement."(b) Any term or part of the agreement or transaction to have been unconscionable at the time it was made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable term or part, or so limit the application of any unconscionable term or part as to avoid any unconscionable result.(fn8)
In a voluntary effort to make consumer contracts and credit instruments more understandable, various banks and insurance companies began to experiment several years ago with plain English forms. The simplified Citibank consumer promissory note (see Appendix) became an immediate success. Reform seemed inevitable.
Certain members of the New York Legislature felt that the plain English movement deserved an added boost. With the help of the consumer lobby, a plain English law was created and ultimately enacted.
On August 5, 1977, Governor Carey of New York signed the first state plain English statute. As subsequently amended in 1978, the statute requires that consumer contracts and leases be (1) written in a clear and coherent manner using words with everyday meanings and (2) appropriately divided and captioned by its various sections.(fn10) Contracts and leases involving $50,000 or more are exempt from coverage. A creditor, seller or lessor who fails to comply will be held liable to the consumer for actual damages along with a penalty of $50. Penalty damages in a class action or series of class actions may not exceed $10,000. No penalties may be enforced when both parties have fully performed under the agreement. Moreover, a party who "attempts in good faith to comply" with the statute is not liable for the $50 penalty.
The statute expressly provides that its violation will...
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