ContractsProf Blog

Guest Post from Michael Blasie on Plain Language Waivers

Which Contract is Better?
By Michael A. Blasie

If presented with two contracts with wildly different language about the same transaction, how would you tell which is better? To work towards an answer, let’s consider the waiver for the Paine to Pain Trail Half-Marathon, which is a trail running race in southern New York.

1. Waiver Language
2. The Introduction

The waiver begins “We bet you’ve never seen a waiver and disclaimer like ours” and has an image of the word “legalese” circled in red.

1. Kind of Hazards

In a few paragraphs comprised of short, plain, humorously-worded sentences, the waiver explains how natural and human-made, known and unknown hazards can injure racers.

First, it describes a category of natural tripping hazards: “The trail has plenty of rocks, roots, stumps and other tripping hazards.” Then it describes a category of human-made tripping hazards: “A faster runner might, therefore, knock you to the side, causing you to slam headfirst into a tree or be impaled on a jagged root.”

It warns of general health hazards caused by nature, “like poison ivy, ticks, bugs, wasps and other woodsy things you find in the great outdoors.” When pointing out how weather can affect racers, the waiver notes “[w]ind and rain may create mud holes, fell trees and limbs and create hazards that race officials don’t even know about. Even if we detect a hazard, don’t expect us to warn you. You’re on your own.”

Image by Anthony22, CC BY-SA 3.0 
via Wikimedia Commons

Almost in a chuckling tone, the waiver warns about directions: “Vandals may swipe trail markings. You could veer off course and run straight into a horse’s ass for all we know. . . .  race officials may deliberately create extra hazards. Just for fun. (Don’t worry, this gets better.)”

When discussing the importance of hydration and nutrition, it warns “[t]here are only three water stops, so it’s important to carry a water bottle and any food that you want. If you get dehydrated, it could be months before we find your pile of vulture-picked bones. (Ever had so much fun reading a disclaimer?)”

Last, it points out road crossing dangers: “There are some road crossings. They might have police coverage. Or they might not.”

1. Release Language

Thomas Paine Cottage, image by Dmadeo 
via Wikimedia Commons

Then comes the release language: “But even though you might get hurt or lost, you’re agreeing to all this crap because you want to run this race.”  

To describe who the racer is releasing, the waiver states: “You are therefore releasing and discharging all race officials, volunteers, sponsors,  municipalities, and school districts, as well as releasing the rocks, roots, bugs, tree limbs, and other stuff, dead or alive, gnarly or not, that might poke an eye out or otherwise hurt you.  Because you know that trail running is a high-risk activity.” In case the bottom line was unclear, the waiver states “[i]n other words, you won’t sue any of the people or groups responsible for this race if you get hurt or suffer illness (such as COVID).”

1. Known and Unknown Risks

“We’re almost done. This is the important part. This trail has known knowns; there are things we know that we know. There are also known unknowns; that is to say, we know there are some things we do not know. But there are also unknown unknowns – there are things we do not know that we do not know. You are accepting all these risks; known and unknown.”

1. Concluding Swipe at Typical Waiver Language

“And you are agreeing to all of this even though it’s written in plain English instead of stupid legalese.”

1. Is This Waiver Better?

By the way, you might like to know a plaintiffs’ personal injury lawyer created the race. The fact that a lawyer who likely has extensive experience attacking waivers would choose to use one with very different language likely untested in court piqued my interest.

The waiver’s language is unique. It certainly looks nothing like the kind of language usually found in waivers for high-risk activities. Indeed, it openly mocks typical waiver language, while also invoking humor and using plain language. All that makes it different. But different is not necessarily better.  

Is this waiver better than the traditionally worded waiver? I am less interested in the answer and more interested in the process of getting to an answer because I am not convinced lawyers or scholars have a way of evaluating contract language.

Of course, most would say the waiver must be enforceable. Ok, so it has to have all the requirements for contract formation and nothing that would render it unenforceable. But that is a fairly low bar, and many differently-worded waivers would meet this threshold.

And you would want the waiver to contain the right substance. This analysis prompts an interesting question: does this waiver offer more, less, or the same substance as a traditionally worded waiver? For the moment, let’s assume both options are coextensive.

Next, you would probably say it should be enforceable the way the client wants it to be. In other words, we want to be able to predict a court will interpret language to our client’s advantage. Fair enough, but without case law interpreting the language, it seems hard for a lawyer to claim one set of language is more predictable of how a court would rule than another.

Here is where deciding between the two gets murky. I do not think there is widespread agreement on what else a lawyer or a client would consider when evaluating a contract. Here are other potential considerations:

• Should the waiver be understandable to the participant?
• Should the waiver be understandable to race administrators?
• Should the waiver’s writing style be consistent with or supportive of the company’s brand?
• Should the waiver decrease the chance a racer will be harmed, which in turn decreases the chance of a lawsuit?
• Should the waiver decrease the chance an injured racer would sue (even if you believe you would win at trial)?

What else would you consider?

• Conclusion

A contract may serve a client in ways beyond being enforceable in court the way the client intended. Looking at unconventionally-worded contracts like this one may provide some insights as to what additional purposes contractual language might serve.

Tuesday Top Ten - Contracts & Commercial Law Downloads for July 25, 2023

Summer may be fading fast as the fall semester looms in the distance, but there's still time to dig into the hottest in recent contract and commercial law scholarship. Let's check the charts!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 26 May 2023 - 25 Jul 2023

Rank	Paper	Downloads
1.	Big Data on Contract Interpretation Farshad Ghodoosi and Tal Kastner California State University, Northridge, Nazarian School of Business & Economics, and Touro University, Jacob D. Fuchsberg Law Center	280
2.	Why Study Law? Lawrence J. Trautman, Rachel Chambers, Michael Conklin, Brian Elzweig, Larry D. Foster II, Angelica Guevara, Christopher P. Guzelian, Ella McCown Jones, Lora Koretz, Rebecca Nieman, more... Prairie View A&M University - College of Business, University of Connecticut - School of Business, Angelo State University - Business Law, University of West Florida, Prairie View A&M University - College of Business, Business Law and Ethics, Texas State University School of Business, Ohio University, W. P. Carey School of Business at Arizona State, University of San Diego, Knauss School of Business	117
3.	Leveraged Finance Greg Nini and David C. Smith Drexel University - Department of Finance and University of Virginia - McIntire School of Commerce	115
4.	Opportunistic Breach of Contract Francesco Parisi, Ariel Porat and Brian Bix University of Minnesota - Law School, Tel Aviv University and University of Minnesota Law School	111
5.	The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum Duncan Kennedy Harvard Law School	109
6.	Much Ado about Artificial Intelligence or: the Automation of Contract Formation Eliza Mik The Chinese University of Hong Kong (CUHK) - Faculty of Law	105
7.	A Law Professor's Love-Hate Relationship with the Restatement (Second) of Contracts Jeffrey M. Lipshaw Suffolk University Law School	97
8.	Pluralism Aditi Bagchi Fordham University School of Law	88
9.	Under my Umbrella: Seeking Shelter Under an ESG Clause Emily Hay Hanotiau & Van den Berg (HVDB)	87
10.	Class Action Settlements as Contracts? Howard M. Erichson and Ethan J. Leib Fordham University School of Law and Fordham University School of Law	86

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 26 May 2023 - 25 Jul 2023

Rank	Paper	Downloads
1.	Big Data on Contract Interpretation Farshad Ghodoosi and Tal Kastner California State University, Northridge, Nazarian School of Business & Economics, and Touro University, Jacob D. Fuchsberg Law Center	280
2.	Laws Applicable to International Smart Contracts and Decentralized Autonomous Organizations (DAOS) Luís de Lima Pinheiro University of Lisbon - Faculdade de Direito	222
3.	Even Lawyers Don't Like Legalese Eric Martínez, Frank Mollica and Edward Gibson Massachusetts Institute of Technology (MIT), University of Edinburgh and Massachusetts Institute of Technology (MIT)	128
4.	The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum Duncan Kennedy Harvard Law School	109
5.	Video Game Law Mark A. Lemley and Sonali Maitra Stanford Law School and Independent	106
6.	A Law Professor's Love-Hate Relationship with the Restatement (Second) of Contracts Jeffrey M. Lipshaw Suffolk University Law School	97
7.	Pluralism Aditi Bagchi Fordham University School of Law	88
8.	Class Action Settlements as Contracts? Howard M. Erichson and Ethan J. Leib Fordham University School of Law and Fordham University School of Law	86
9.	Third Parties Nicolas Cornell University of Michigan Law School	77
10.	Contracting as a Class Caleb N. Griffin University of Arkansas - School of Law	69

Tuesday Top Ten - Contracts & Commercial Law Downloads for July 18, 2023

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 19 May 2023 - 18 Jul 2023

Rank	Paper	Downloads
1.	Big Data on Contract Interpretation Farshad Ghodoosi and Tal Kastner California State University, Northridge, Nazarian School of Business & Economics, and Touro University, Jacob D. Fuchsberg Law Center	276
2.	Standards and the Law Cary Coglianese University of Pennsylvania Carey Law School	160
3.	FRAND Dispute Resolution under the Data Act and the SEP Regulation Tilman Dr. Niedermaier and Peter Georg Picht CMS Hasche Sigle and University of Zurich - Institute of Law	145
4.	Opportunistic Breach of Contract Francesco Parisi, Ariel Porat and Brian Bix University of Minnesota - Law School, Tel Aviv University and University of Minnesota Law School	106
5.	Leveraged Finance Greg Nini and David C. Smith Drexel University - Department of Finance and University of Virginia - McIntire School of Commerce	98
6.	Much Ado about Artificial Intelligence or: the Automation of Contract Formation Eliza Mik The Chinese University of Hong Kong (CUHK) - Faculty of Law	93
7.	A Law Professor's Love-Hate Relationship with the Restatement (Second) of Contracts Jeffrey M. Lipshaw Suffolk University Law School	91
8.	The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum Duncan Kennedy Harvard Law School	91
9.	Class Action Settlements as Contracts? Howard M. Erichson and Ethan J. Leib Fordham University School of Law and Fordham University School of Law	85
10.	Pluralism Aditi Bagchi Fordham University School of Law	84

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 19 May 2023 - 18 Jul 2023

Rank	Paper	Downloads
1.	Big Data on Contract Interpretation Farshad Ghodoosi and Tal Kastner California State University, Northridge, Nazarian School of Business & Economics, and Touro University, Jacob D. Fuchsberg Law Center	276
2.	Laws Applicable to International Smart Contracts and Decentralized Autonomous Organizations (DAOS) Luís de Lima Pinheiro University of Lisbon - Faculdade de Direito	208
3.	Even Lawyers Don't Like Legalese Eric Martínez, Frank Mollica and Edward Gibson Massachusetts Institute of Technology (MIT), University of Edinburgh and Massachusetts Institute of Technology (MIT)	116
4.	Video Game Law Mark A. Lemley and Sonali Maitra Stanford Law School and Independent	94
5.	A Law Professor's Love-Hate Relationship with the Restatement (Second) of Contracts Jeffrey M. Lipshaw Suffolk University Law School	91
6.	The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum Duncan Kennedy Harvard Law School	91
7.	Class Action Settlements as Contracts? Howard M. Erichson and Ethan J. Leib Fordham University School of Law and Fordham University School of Law	85
8.	Pluralism Aditi Bagchi Fordham University School of Law	84
9.	Third Parties Nicolas Cornell University of Michigan Law School	74
10.	Contracting as a Class Caleb N. Griffin University of Arkansas - School of Law	58

Terms of Service and ProCD v. Zeidenberg on Planet Money

One of my favorite podcasts is NPR’s Planet Money so I was delighted when they contacted me to talk about, of all things, contracts!  The hosts, Jeff Guo and Emma Peaslee, were a delight and did an amazing job of making the subject of Internet contracts interesting and understandable.  The episode covers some of this blog’s favorite topics, including the risks of clicking "agree" to website terms of service and the case that contracts profs love to hate - ProCD v. Zeidenberg.  There's even a guest appearance by Matthew Zeidenberg himself!  Here's the link. 

Tuesday Top Ten - Contracts & Commercial Law Downloads for July 11, 2023

Greetings, ContractsProf Blog readers, and welcome to another edition of the summer-sporadic Tuesday Top Ten. Let's check out the SSRN charts and see where the downloads are happening!

 

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 12 May 2023 - 11 Jul 2023

Rank	Paper	Downloads
1.	Big Data on Contract Interpretation Farshad Ghodoosi and Tal Kastner California State University, Northridge, Nazarian School of Business & Economics, and Touro University, Jacob D. Fuchsberg Law Center	275
2.	Amazon's Pricing Paradox Rory Van Loo and Nikita Aggarwal Boston University - School of Law and UCLA School of Law	169
3.	Unjust Enrichment by Algorithm Ayelet Gordon-Tapiero and Yotam Kaplan Georgetown University and Bar-Ilan University - Faculty of Law	148
4.	FRAND Dispute Resolution under the Data Act and the SEP Regulation Tilman Dr. Niedermaier and Peter Georg Picht CMS Hasche Sigle and University of Zurich - Institute of Law	143
5.	Standards and the Law Cary Coglianese University of Pennsylvania Carey Law School	133
6.	Choice of Law Meets Private Law Theory Hanoch Dagan and Sagi Peari Tel Aviv University - Buchmann Faculty of Law and The University of Western Australia	126
7.	Opportunistic Breach of Contract Francesco Parisi, Ariel Porat and Brian Bix University of Minnesota - Law School, Tel Aviv University and University of Minnesota Law School	101
8.	Leveraged Finance Greg Nini and David C. Smith Drexel University - Department of Finance and University of Virginia - McIntire School of Commerce	90
9.	The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum Duncan Kennedy Harvard Law School	84
10.	Pluralism Aditi Bagchi Fordham University School of Law	84

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 12 May 2023 - 11 Jul 2023

Rank	Paper	Downloads
1.	Big Data on Contract Interpretation Farshad Ghodoosi and Tal Kastner California State University, Northridge, Nazarian School of Business & Economics, and Touro University, Jacob D. Fuchsberg Law Center	275
2.	Laws Applicable to International Smart Contracts and Decentralized Autonomous Organizations (DAOS) Luís de Lima Pinheiro University of Lisbon - Faculdade de Direito	206
3.	Even Lawyers Don't Like Legalese Eric Martínez, Frank Mollica and Edward Gibson Massachusetts Institute of Technology (MIT), University of Edinburgh and Massachusetts Institute of Technology (MIT)	111
4.	Video Game Law Mark A. Lemley and Sonali Maitra Stanford Law School and Independent	90
5.	The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum Duncan Kennedy Harvard Law School	84
6.	Pluralism Aditi Bagchi Fordham University School of Law	84
7.	Class Action Settlements as Contracts? Howard M. Erichson and Ethan J. Leib Fordham University School of Law and Fordham University School of Law	82
8.	Private Law and Public Discourse Aditi Bagchi Fordham University School of Law	76
9.	Consent and Disagreement Aditi Bagchi Fordham University School of Law	72
10.	Third Parties Nicolas Cornell University of Michigan Law School	69

On Hiatus

Dear Readers,

I am taking the month off to move house and try to get some scholarship done before the new semester begins.  There may be guest posts and Top Tens, but I do not anticipate putting up fresh content until August.

If you need diversion, I recommend the Tour de France!

 

LAFAY!!!