Comment by twhb | Hacker News Reader

Comment by twhb | Hacker News Reader

The problem with all these “nobody reads this” contests and “proofs” is that communication always and must be both parties’ job. If 1 in 100 doesn’t understand you then it’s probably them, but if it’s 99 in 100 then it’s you who screwed up. They didn’t screw up. Heck, if 10 in 100 don’t understand you, then a professional should be able to do better. Yet here these guys are, fully understanding that they sit at something like 999 in 1,000, and pulling an “it’s not me, it’s everybody else”.

I think it stems from the law validating that view. Courts don’t care if 999 in 1,000 didn’t understand you, they’ll enforce whatever was written. That makes it beneficial to not be understood, because you can basically get courts to enforce terms that you unilaterally dictate. So contracts and laws devolve into a contest of unintelligibility, limited only by ability to prove to a court that you did say the thing: slipping in surprising and unrelated clauses, misleading headings and names, different vocabulary from common English, etc. Contrast that to warning signs and to communication between teammates, which have evolved a totally different communication style, because in those cases it’s actually detrimental to be misunderstood.

This is really not how law works. Courts don't enforce whatever's written (look up "unconscionability" for one thing), and contracts are parsed as an attempt to come to a mutual agreement ("meeting of the minds"). Law has a very specialized vocabulary, and contracts are influenced by a great deal of case law, but it's not a game of tricks.

You’re right mostly. It is about reaching a meeting of the minds. And law isn’t some thing with “loopholes” and “one weird tricks” but contracts generally contain integration clauses that state that the entirety of the agreement is contained inside the language of the signed contract itself. What this means is that as long as the terms are not illegal (such as usurious interest rates or run afoul of consumer protection laws or any number of other things), typically if it’s in the contract, it’s enforced. This manifests itself in situations where someone will cross out clauses that they object to before signing and those clauses don’t have any effect given they’re stricken, or where things are added and then enforced.

This creates a little need for trust among legal peers because this sort of thing can happen if one is not careful, but in a professional environment adding in things randomly is a serious breach of trust.

All the obfuscation I described is present in EULAs, ToSs, and US law, all of which are enforced, when called upon, mostly as written. Maybe there is a higher standard in custom B2B contracts, but that really gets down to the point of it: you start seeing clear communication only when the speaker is motivated to be understood.

And I wouldn’t call it trickery, because that implies intent. I think the forces at play make no distinction between a knowing operator and somebody who just does what’s normal, what’s safe. I think plenty of companies slap an unintelligible ToS on their website not as a trick, not even thinking of it as unintelligible, but just because there’s good evidence that this particular boilerplate protects them in court.

If some random website has a ToS that said by using this service you sign over the deed to your house and add our company to your will, no court would enforce that. Pretty much anything unusual outside of the standard terms is hard to get a court to enforce in a b2c ToS setting.

I wouldn't risk it

A lot of time the vocabulary has equivalents people would regularly understand, what advantage is there in keeping the obtuse language? I understand old laws exist but in such cases new laws could point to the equivalency instead of continuing the undecipherable mess.

> what advantage is there in keeping the obtuse language?

Because if a new legal vocabulary was introduced, I would now have to read contracts in both "old legalese" and "new legalese".

I don't think it really matters how clearly contracts are written or how simple the language is; most people won't read them anyway.

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