It’s been a while since my last blog posting, and I’m afraid that this one will come off as less an expression of legal scholarship than as a frustrated rant. I’ll begin with just one question: Does anybody read what they sign anymore?
I don’t want to comment too specifically on ongoing litigation, but let’s just say that defending against “Consumer Sales” disputes has kept me occupied for quite some time lately. The crux of these disputes can be almost identically summarized as follows:
- The “consumer” signed an agreement/acknowledgement/disclaimer with a “supplier” that was clear and unambiguous. (e.g., “You are buying this ‘AS IS’ and without warranty” or “The total cost of this transaction is $xxxxx.”).
- The consumer subsequently claims not to be bound by said document based upon an alleged “verbal representation” that is directly contrary to the language of the written agreement. (e.g., “One of the supplier’s employees told me something different” or “I didn’t read that part”).
- The consumer brings a claim for violation of the Consumer Sales Practices Act (R.C. §§ 1345.01, et seq.) (“CSPA”), seeking treble damages, costs, and attorney fees.
Call me old-fashioned, but I still adhere to the axiom that a person who is competent to contract cannot avoid a contract’s terms by claiming that he [or she] did not notice or read those terms prior to signing. Ameritech Publ., Inc. v. Snyder Tire Wintersville, Inc., 7th Dist. Jefferson No. 09 JE 35, 2010-Ohio-4868 at ¶ 25 (citing ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503, 692 N.E.2d 574, 579 (1998)). Is a potential claim under the CSPA sufficient grounds to disregard centuries of basic common contract law? Fortunately, the answer from many well-reasoned Ohio courts remains NO; the parol evidence rule prevents consumers from alleging verbal representations that are clearly different from the final, written agreements at hand. See Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 2009-Ohio-3554, 913 N.E.2d 410; Marable v. Michael J. Auto Sales, 1st Dist. Hamilton No. C‑120373, 2013-Ohio-1750.
Yet why does it seem as though this simple concept is under assault anytime a consumer wishes to conjure up an alleged verbal representation that is irreconcilable with the plain and unambiguous terms of a written document? Perhaps we’re all at least somewhat guilty. I confess to never having read the infamous Apple iOS Software License Agreement, despite having “agreed” to it several dozen times over the years.
Are we entering a post-literate contractual world? Is the increasing glut of “click yes to agree” contracts subtlety undermining our traditional respect for the written word? Fortunately, I think I have the solution. In order to idiot proof our contracts and prevent any future consumer misunderstandings, both real and imaginary, suppliers should start video recording these transactions (with consumer consent, of course). This is not a format for subtlety. Sample questions could include: “DO YOU UNDERSTAND WHAT YOU ARE SIGNING?”, or “HAS ANYBODY TOLD YOU ANYTHING DIFFERENT FROM WHAT YOU ARE SIGNING?”, or even “HEY DUMMY, HAVE YOU READ THIS DOCUMENT ALL THE WAY THROUGH PRIOR TO SIGNING?” You get the idea. I’m currently soliciting guinea pigs for this experiment. Ironically, perhaps the only way to save the integrity of the written “four-corners” of a contract is to provide extrinsic visual and audio evidence to confirm its effect.