Wednesday, June 17, 2020
Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
This is the third guest post by Charles Calleros (right). We at the blog are grateful to Charles for stopping by.
One of my favorite students over forty years of teaching, whom I will call “M,” crossed the border from Mexico at the age of 5 with his family in a harrowing trip that he remembers vividly. M learned English in elementary school and soon was translating leases and other agreements for his parents, who took longer to learn a new language. So began M’s journey to citizenship and eventually to law school and success as an associate attorney in a law firm.
But immigrants who have yet to master English seldom have a precocious child at their side to translate terms proposed to them, even assuming the terms would be comprehensible if translated. One such case is Morales v. Sun Constructors, Inc., 541 F.3d 218 (3d Cir. 2008), an extreme example of the unrealistic assumptions that frequently underlie mutual assent.
We are all familiar with the unforgiving standards for mutual assent: So long as the offeror objectively conveyed proposed terms to the offeree, the offeree’s expression of assent binds the parties regardless whether the offeree read or understood the terms,Upton v. Tribilcock, 91 U.S. 45, 50 (1875), or secured a translation of terms conveyed in a foreign language, Paper Express v. Pfankuch Maschinen GmbH, 972 F.2d 753 (7th Cir. 1992) (commercial contract); Mohamed v. Uber Technologies, Inc., 109 F. Supp. 3d 1185, 1197-98 (N.D. Cal. 2015) (applying Paper Express to employment contract), rev’d on other grounds, 836 F.3d 1102 (9th Cir. 2016).
Accordingly, in Morales, when a monolingual Spanish-speaking employee signed an English language employment agreement, we shouldn’t be surprised that courts would bind the employee to an arbitration clause that the employee was unable to read or understand. But Morales comes with a twist that should cause even the most jaded students to furrow their brows: the employer arranged for a fellow employee to translate the terms, but that employee failed to translate the arbitration clause.
The majority and dissent concisely serve up conflicting perspectives that can spur discussion and debate in the classroom, perhaps spilling over into the hallways. The majority implicitly places the burden on the employee to arrange for, or confirm the provision of, a complete translation:
Morales, in essence, requests that this Court create an exception to the objective theory of contract formation where a party is ignorant of the language in which a contract is written. We decline to do so. In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.
Morales, 541 F.3d at 222. The dissent opined that the omission by the translator appointed by the employer materially distinguished this case from the precedents on mutual assent. Id. at 224 (Fuentes, J., dissenting).
In my casebook, I locate a summary of Morales in a section after our main exploration of unconscionability, addressing ways in which unconscionability claims can overlap with issues of mutual assent and of public policy violation. In Morales, for example, even if the majority could find mutual assent in a faulty translation of a non-negotiated contract in a language foreign to the employee, surely those factors would add up to a solid showing of procedural unconscionability, thus inviting scrutiny of the arbitration clause for substantive problems. Did Morales’s attorneys argue unconscionability? What kinds of asymmetry or other unfairness in the arbitration clause might support a finding of substantive unconscionability?
Whether covered as a main case or summarized in notes, Morales facilitates several pedagogic goals, because it:
- shines an especially bright light on the difficulty of challenging mutual assent;
- shows how facts that fall short of undermining mutual assent can nonetheless establish one branch of unconscionability;
- invites student debate about whether precedent should stretch to encompass the unusual facts of this case or whether the dissent correctly finds a basis for distinguishing this case;
- starts with an uneven playing field for an employee who did not draft the contract, has little bargaining power, and might not fully understand the arbitration clause even if translated, and then it reveals how a language barrier further tilts the field against the employee; and
- invites discussion about possible legislative intervention to soften the precedent on mutual assent in the face of language barriers, g., Cal. Civ. Code § 1632 (requiring translation of consumer contracts in certain circumstances).