Friday 18 August 2017

Always Read The Small Print

One day when I was newly-minted one-pip in the army, one of my soldiers came to me with a form that needed initialling by an officer.  Since this happened at least twenty times a day, it was no big deal.  I could see it wasn't the usual permit for a military vehicle journey or weekend out of barracks - it was something to do with an application for a car loan - but I signed it anyway, without reading the finer details.

It came back to bite me on the bum in less than 48 hours.  I'd inadventently claimed to be "assistant paymaster or equivalent" and was in for a bollocking at Regimental HQ.  Needless to say I made a vow ... 

When, many years later, I found myself dealing ginormous energy contracts, I carried this resolution through by being the annoying negotiator who'd actually read the two-thirds of the 250-page contract that is 'legal boilerplate'.  There'd always be something being passed across in there.  It always makes me snort when advertisers and salespeople people wave airily at the "T's & C's" as if they are some quaint and meaningless decorative runes that appear by convention on ceremonial bits of paper that are scattered around like confetti to celebrate the closing of the deal.  FFS - the "T's & C's" are the deal ! 

Anyhow, to get to the point:  we are having some roofing works done at Schloss Drew, and our shortlisted contractor handed over the usual duplicating-paper sheet with illegible small-print in 6-point (grey) on the back.   Fortunately, my scanner and OCR software are up to the job, and this is just one example of what I found.



Sic !  Suffice to say, the works will be carried out under a contract of my own devising.   I imagine the said contractor (who self-evidently has no more read his own documents than any of his previous clients) will be using my version in the future - and he'll not suffer too much in the event of dispute, since I am nothing if not a reasonable person ...

ND

9 comments:

Anonymous said...

Sorry to be thick but is the point of this piece to berate the obviously mistaken use of "arse" for "us" (they sound quite similar in some English dialects) or is there a higher reason? Substituting your boiler-plate weasel words for those of your contractor does not seem particulary high on the moral scale.

Electro-Kevin said...

***Humour Failure Alert*** ***Humour Failure Alert***

Nick. As a disgruntled soon-to-leave employee of a large building contractor I would issue day work tickets to clients with swear words in them. All were paid duly.

Nick Drew said...

Anon, you need to see the rest of it - the deficiencies go way beyond typos, and truly betray a document no-one has ever proof-read, in all dimensions. What starts as sloppy drafting & lazy cut-and-paste rapidly becomes actually dangerous. (To give another example of a quite different nature, as the buyer I am variously referred to in the document as "Client", "Customer", "Purchaser", "Buyer" and "You", with and without capitalisation.)

BTW, given how shockingly bad it is, and that I am the humble consumer, it'd be them who couldn't enforce the damn' thing if push came to shove. I am doing them a favour.

And they needn't sign anything they don't like. Y'know - willing buyer, willing seller, negotiations? I'm a capitalist, the clue is in the title.

And when I say I'm reasonable - it's true!

Electro-Kevin said...

Possibly more to do with the fact that 'builder's bum' is written into construction contracts automatically. Part of the service, you see. The solicitor got a bit confused in this case.

AndrewZ said...

Lucky you spotted that Nick, you could have got a bum deal.

Raedwald said...

Nick - sorry to be a wet blanket, but in law you're better protected as a consumer by using the roofer's standard terms and conditions. In business there's no advantage of course, but the protection of the 1977 Unfair Contract Terms Act and the 2015 Consumer Rights Act only fully apply if you deal as a consumer on the trader's standard, unmodified T&Cs.

As a very experienced commercial contracts drafter, I always (in the UK) ensure that I'm a 'consumer' as defined in law for any domestic goods or services. Ignore any unreasonable T&Cs - they're worthless, and can be easily set aside by the County Court in the event of a dispute. If you jointly agree a contract, you're stuck with it.

The UCTA also enables action for Tort - or rather, precludes the trader relying on an exclusion of Tortious liability - so a sound umbrella to have above your head.

Nick Drew said...

Mr R - I know exactly what you are saying: (hence given how shockingly bad it is, and that I am the humble consumer, it'd be them who couldn't enforce the damn' thing if push came to shove. I am doing them a favour above)

the reason I set about it was because there were some marginal aspects around Liability that I didn't ever want to be subject to the lottery of a court - which may be broadly on the side of the consumer, but will still be making its own judgement

I imagine you'd sometimes trust yourself to repair a bit of machinery? - even if you could turn it back to the manufacturer and get into a warranty dispute. And other times, you wouldn't DIY. That's how I see contracts.

Raedwald said...

I shouldn't have doubted you Mr D - it's my own laziness in not counting domestic contracts serious enough to warrant negotiation, no doubt, and a reliance on the rule of contra proferentum plus the legislation, and as I was taught my law by a Chancery barrister, always the shield of Equity if things get tough ;)

Ghost of BE said...

Nick,

The trick is - of course - to know where one's knowledge and experience run out. I have lost count of the times when a client or a client's adversary have run into trouble because they thought they could save themselves a lot of quid by not appointing an advisor. In my world we secretly love these people because it tends to cost much more to sort out a problem than it would have cost to take us on at the outset.