“South African consumers have had the right to plain-language consumer contracts since 2011. However, five years later, the approach to drafting plain-language, consumer-facing legal documents is often still superficial and formulaic.”

What is the plain language movement? “The plain language movement focussed on the social benefits of clear legal communication: improving access to justice, and enabling consumers to make more informed decisions.”

If consideration is given to general contracts concluded on a daily basis by at least one party being regarded as the layperson, it is not a secret that that person is in a disadvantaged position. Many people conclude contracts daily and a majority of them are unknowledgeable of what the contract actually entails.  

Contracts are supposed to be a safety net for the parties if/ when a contracting party is found to be in breach. However, how can one rely on any provision of the contract if they do not understand their recourse?

What is a contract?

A contract is a legally binding agreement between at least two separate parties. The contract then brings about certain obligations / duties as well as the creation of specific rights.

In order for a contract to be regarded as such, certain requirements must be met for the legal creation of same.  

What are the requirements for a valid, binding contract?

1. Consensus. Parties must agree to the contract i.e. ad idem (a meeting of the minds)
2. Capacity. In order for a party to enter into a contract, they have to possess the necessary mental capacity to do so. This means that persons who are minors, incapacitated or who are under curatorship lack this capacity. In respect of corporations, only a person who has been given the authority to enter into an agreement on behalf of the company may do so. A contract that has been entered into by any of the aforementioned persons will be found to be void.
3. Formalities. Should it be necessary for certain formalities to be applied. They are then required to in fact, be applied.
4. Legality. In the eyes of the law, a contract must be seen as legal. A contract cannot out write legislation nor what constitutes lawful or illegal actions.
5. Possibility. Obligations/ duties to be carried out as a result of the contract must be able to be performed.
6. Certainty. The contract must have clear and definite terms.

Can consensus be reached where content is not truly understood?

As all contracts are consensual in nature, it is of the utmost importance that both parties adhere to this requirement. However, it now brings about the question of whether the layperson would truly understand the content of the contract that they would be entering into, should this factor be in the negative, can it be said that consensus has indeed been reached? Due to the fact that the layperson, when reading through a contract dominated by lengthy clauses and unfamiliar terms would generally skim over the content and proceed to sign the contract in any event, can it be said that the dominating contracting party relies on this factor when concluding a contract? Can it be regarded that there is a true ‘meeting of the minds’? When a person wishing to enter into a contract sources the expertise of a professional drafter, does the person understand all the content that has been included in his/her contract? Can it be regarded that consensus exists in this instance?

What can then be said about all previous contracts entered into by parties who were unsure of the terms they agreed to? Can it be questioned that consensus was never truly present? Or is it the understanding that as the principle performance was understood by both parties regardless of any other terms present, a valid contract came into being?

For the masses.

The majority of our population is not educated in the ways that require one to adequately understand the ‘in’s and out’s’ of a contract. Further, over 50% of the population are not proficient in the English language as a first language therefore, where a person struggles to speak the language, how can we expect them to understand the written text? The repercussion of which leads to one being bound by a contract to which they do not want to be, entailing a limitation on their person as well as financial constraints. Many a time a party will have to refer back to the agreement but will be unable to fully interpret any content that may be relevant.

Due to this factor, it is important to note who the audience is of a particular agreement. Lawyers are not supposed to make matters more complicated with long superfluous language but rather, should endeavour to simplify matters where it is evident that the majority of the parties involved require such simplification. Therefore, it should be the first port of call to practice with the objective to ensure concise understanding and interpretation. In that way, a party will go into the contract fully aware of what is expected of them, what to expect from the other contracting party, what it entails to be in breach (if any) and possible available remedies afforded by the contract. It must be borne in mind that a person’s day to day individual and business transactions cannot always revolve around the assistance or knowledge of a lawyer and it should be viewed that it is our duty to enable a party to be self – reliant / self – thinking in certain instances, allowing them to function adequately on their own in most instances.

Conclusion

The plain language movement is something that has not fully come to the attention of many. Therefore, there are still advancements that are to be made in order to bring about this change into the drafting of legal documents as it relates in instances where laypersons are involved.

It can be said that the drafting techniques of lawyers have been hardwired into them. Thus, when it comes to drafting something that is considered ‘less than’, it is not met with any form of enthusiasm, possibly feeling that the traditional ‘purity’ of the law will be lost. However, it is not to say that drafting in plain text does not require any degree of skill. To be able to reduce the content in plain and simple language requires an intensified meaning of the content and the ability to produce this understanding into relatable text. As Elbert Einstein says, “if you can’t explain it simply, you don’t understand it well enough.”

Further, and possibly the most important factor is that lawyers are not drafting contracts for themselves. It is for this reason that consideration should be made towards the audience of the contract and what the client/ parties prefer.

Changing the way lawyers draft contracts would allow a party to be in control of their decisions thus ensuring the element of consensus in its total form.

Written by Kathleen Mukheibir, Candidate Attorney, Schoeman Law