Corporate & Securities Law

Presenting Contract Text in Full and in Bullet Points

By Ken Adams

Longtime reader D.C. Toedt pointed out to me this post on The Consumerist. It applauds the terms of use of a company called Aviary, in that it offers, in bullet points set out to the right of the full version of the terms of use, a plain-English summary of the provisions. (Click here to go to Aviary’s terms of use.)

I think that approach is a dubious one, in that it violates a basic rule of contract drafting, namely don’t say stuff twice. If you fail to capture in the bullet points an important nuance contained in the full version, you shouldn’t be surprised if an aggrieved user sues you if you try to enforce that nuance.

The bullet points contain enough text to require the reader to pay attention, and the full version is the usual bloated crap. (Pardon my French!) That suggests that it would have been easy enough to achieve a compromise by including just the full version, cleaned up to make it much clearer and much more concise.

Incidentally, although the bullet points are evidently striving for the feel of a consumer contract, the full version sure looks like your regular business contract. If I were Aviary, I’d bite the bullet and treat it like a business contract and ditch the second person (using “you” and “your” to refer to the user). That’s something I discuss in MSCD 2.5 and in this August 2006 blog post.

Full post as published by AdamsDrafting on March 16, 2009 (boomark / email).