[theluketaylor]

That makes sense in a vacuum, but in the real world not everyone is a lawyer and corporations have a vast power imbalance compared with a member of the general public. It's incredibly easy to bury something surprising among many other clauses, such as only scheduled flights being covered and not charters. The idea certain potentially surprising clauses need to more prominent seems pretty reasonable on balance. The onus is still on the signing party to read them, but they are afforded the opportunity to notice among many clauses these are ones that deserve special attention.

That means there will always be an argument around what a reasonable party would consider a surprising clause, but contract law disputes deal with nuance, edge cases, and what a reasonable party would expect all the time. With rulings like this corporations will air on the side of caution when taking big swings in forming their agreements since litigation is so costly and the outcome so uncertain. Consumers gain a little power back (though still far from equal footing).

This should only apply when there are large power imbalances, such as individual people entering agreements with vast multinational corporations. When big corps ink deals with each other caveat emptor should reign; they have equal opportunity to review and understand the terms and therefore have to live with the consequences.

[WalterBright]

> The onus is still on the signing party to read them, but they are afforded the opportunity to notice among many clauses these are ones that deserve special attention.

It's not unreasonable to expect a party to a contract to read all of it. If one's case is based on "I didn't read it", the other party should prevail.

> Consumers gain a little power back (though still far from equal footing).

The consumer can always say "no". An important feature of a free market is there are no forced contracts. Saying "no" is the ultimate power.

[skissane]

> It's not unreasonable to expect a party to a contract to read all of it.

Walter, you are a very smart guy. And this is a site which attracts people with above average intelligence and education. It is easy to forget that not everyone is as smart or well-educated as we are.

I know a guy who has been diagnosed with borderline intellectual functioning (i.e. his IQ is above the cutoff for intellectual disability, but only just). He blames it on his alcoholic mother drinking when she was pregnant. He's able to live independently, he drives a truck for a living. But no way is he ever going to be able to comprehend all by himself the dense fine-print of a contract. The law has to look after people like him, not just people like you or me. There are literally millions of people like him out there – around 13% of the population has an IQ in the borderline range.

> The consumer can always say "no". An important feature of a free market is there are no forced contracts. Saying "no" is the ultimate power.

Some products, people need to buy to meet their basic human needs and to function in society. For many of those products, there are only a small number of vendors available. If all of them demand you sign an incomprehensible barrage of legalese, you can't realistically say "no" to doing so. It might not be a "forced contract" in an abstract theoretical sense, but it sure is in a practical sense.

[WalterBright]

There is a concept called a "legally consenting adult". The presumption is that a legally consenting adult is capable of signing a contract. This is why, for example, contracts signed by minors are not enforceable.

If someone is borderline on this, it's fine if the court steps in to give him some slack.

But the defense in the case under consideration was not lack of mental acuity, unclear legalese, ambiguity, coercion, or power imbalance.

It was "didn't read the contract".

[tptacek]

The law (in the US and the Commonwealth) already has a concept that captures the difficulty people with intellectual disability have with contracts: capacity.

[skissane]

Borderline intellectual functioning isn't (under current definitions) considered intellectual disability though.

A person with borderline intellectual functioning can absolutely have capacity to understand a contract sufficiently to agree with it when its terms are explained to them in clear plain English, yet lack the same capacity when they are presented in dense legalese. Legal doctrines of "capacity" tend not to deal with that situation very well, because they focus on the capabilities of one of the parties rather than the form in which the contract is presented. Also, a lot of people with mild cognitive issues (not just borderline IQ, also other issues like age-related cognitive decline, early stage dementia, early stage hepatic encephalopathy, etc) are unaware of those issues, in denial about them, or too ashamed to admit them, so may not benefit from legal rules designed to apply to them specifically, whereas they can stand to benefit from legal rules (like demanding unexpected clauses to be stated prominently to be enforceable) designed to apply to everybody.