3

For example in https://www.google.com/intl/en/policies/terms/

Why does the text change from normal case, to all upper case?

Our Warranties and Disclaimers

We provide our Services using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services.

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS, NEITHER GOOGLE NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

I thought, maybe it's to highlight important parts but I don't think so. A lawyer probably would think "the whole contract is important" and usually the least readable part is the one in all uppercase.

It is to my understanding if the first letter in a regular word is uppercase, it means it has a special meaning in the contract (usually more specific than it's general meaning). From Google's terms,

Thanks for using our products and services (“Services”).

So Services is strange as it has an uppercase S but I'm asking about entire blocks of text.

  • 2
    Someone accidentally hit caps lock? – Dale M Apr 5 '17 at 21:07
4

It is actually because "this is important". Under US law, disclaimers must be "conspicuous" (UCC 2-316). So you can talk regularly when you're just stating the terms, but if you're disclaiming liability, YOU MUST BE CONSPICUOUS ("to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous"). There are many ways to make text conspicuous, so bold or larger type would do, but all-caps is pretty bullet-proof from a technological perspective.

Thanks to ohwilleke for salient citations: invalidation of a plain-type buried indemnification clause, all-caps clause held to be sufficient, law review article on the conspicuousness requirement.

  • So a contract may be considered invalid because part of it wasn't emphasized? – justasking111 Apr 5 '17 at 22:14
  • Not the whole thing, but the disclaimer could be invalidated for lack of prominence. However, this will also be jurisdiction-specific (by state). By making the disclaimer prominent in that way, Google has done what's necessary to wave off warranties, except where (in other countries) it is not possible to disclaim liability. This article says what the situation is by state: pillsburylaw.com/images/content/1/8/v2/1875/… – user6726 Apr 5 '17 at 22:29
  • @justaking111 The 10th Circuit applying Texas law invalidated an indemnification clause buried in ordinary print half way into a 176 page agreement. ca10.uscourts.gov/opinions/13/13-3076.pdf An arbitration clause was thrown out for not being clear enough in Atalese v. U.S. Legal Services Group, LP (NJ 2014). A contract with all caps language was held to comply in another 10th Circuit case. courtlistener.com/opinion/169848/… – ohwilleke Apr 5 '17 at 22:41
  • @justasking111 A law review note on the subject can be found at mjlr.org/2015/09/19/… – ohwilleke Apr 5 '17 at 23:11

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