Is it legal to make a contract intentionally confusing?

Question

Suppose a company drafts a user agreement that is intentionally hard to understand in order to confuse its customers. Maybe it's needlessly long and wordy, maybe it unnecessarily cross-references various other documents, maybe it has a section in Swahili, who knows. Is there any point where this could make the contract unenforceable?

Many people will just click "Accept" on literally anything, and some customers would inevitably accept the agreement in spite of its problems.

Assume for the sake of argument that, although the contract is confusing, it is unambiguous, and its terms (though unfavorable) would be legal and enforceable if it were written in plain English.

Would a contract like that be valid?

Answer 1

Simply being confusing is not enough to make a contract unenforceable. The law generally operates on the premise that people can understand statutes, regulations and contracts, and that if they don't understand a contract, they won't agree to it. Therefore, if they agreed, they understood: this is a fundamental premise of contract law. However, there are a couple of loopholes, "unconscionability" and "public policy", which could provide an escape. In the proposed scenario, we would assume that there is a huge difference in bargaining power between the customer and company, that some term is unfair (a highly subjective matter reduced to expressions like "shocks the conscience"), and the language of the contract is clearly confusing. "Public policy" generally involves a requirement in a contract that is statutorily prohibited: either the required action is itself illegal, or the law has banned any such clauses in a contract (very commonly, residential leases are statutorily prohibited from including clauses waiving statutory protections of rights).

I think that if a contract for some internet thing (e.g. an ISP) had a clause that "unahitaji kukulipa $1 kwa kila siku unayotumia huduma zetu" (you must pay $1 for every day you use the service) that this is not a shocking price, so the contract would be enforceable, even if it ought to be a bit confusing.

Answer 2

You might be in trouble in New Jersey

As a follow on to 6726's excellent answer, some states even have statutes that require many consumer contracts to be clear and understandable. For example, New Jersey law requires consumer contracts to be "easily readable." NJ courts have repeatedly used this statute to refuse to enforce confusing contracts.

Here is the statute, including the two "examples of guidelines” it provides of the sorts of problems courts and others “may consider” when determining whether a contract violates the Act.

56:12-2. Contracts to be written in simple, clear, understandable and easily readable way

A consumer contract...shall be written in a simple, clear, understandable and easily readable way. In determining whether a consumer contract has been written in a simple, clear, understandable and easily readable way as a whole, a court, the Attorney General or the Commissioner of Insurance…shall take into consideration the guidelines [listed below]. Use of technical terms or words of art shall not in and of itself be a violation of this act.

56:12-10. Guidelines

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases....

(1) Sections shall be logically divided and captioned;

(2) A table of contents or alphabetical index shall be used for all contracts with more than 3,000 words;

(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.