THE SMALL PRINT

Terms and conditions in small print at the back of a contract have such a bad reputation that “small print” has become a shortcut to describe sneaking in hidden terms.   Nevertheless, various terms and conditions need to be included in most if not all contracts – to clarify how it should be read, how and where it should be litigated if anything goes wrong, and a number of other features.  This protects all parties.

There are two recent trends concerning the best manner to write those miscellaneous terms.

The first trend, which we practice, is to write them using regular font and formatting.  Well written, in plain English, miscellaneous terms and conditions should not take more than a couple of pages that way.  That should not be so rebarbative as to chase away a prospective partner or customer.  Moreover, we are of the opinion that all parties should know the terms and conditions under which they are contracting.  Here again, well written, plain and fair terms will only strengthen a contract and add value to a professional relationship.

Preferring the other emerging trend, we have had clients who requested that we put the terms and conditions on their websites, and not in the contract at all.  We generally advise against it for two reasons.  First, some Courts still look at this with suspicion.  Second, it can be seen as just another way of hiding the ball.  That said, we know how to do it right in the rare cases when it may fit our client’s particular business.  Fairly specific language is required and a number of requirements must be met for web-based terms and conditions to be binding.  It does not take a lot of words and it is not hopelessly complicated, but it must be done right.

Finally, there are cases, especially in consumer contracts, where mere volume justifies, for the sake of practicality, writing miscellaneous terms in small print.  We still make them fair and, that way, protect our clients’ business relationships with their customers.  But the size of the font may legitimately vary depending on the industry.  A good lawyer will know to advise business clients based not only on the law, but on commercial realities as well.