EDITED BY THE EDITORIAL TEAM :: PHOTOS: SUPPLIED
Have you ever started to read through a document, contract or terms and conditions, only to find yourself halfway through, thinking, “Ah, I’m sure it’s all fine,” and then scrolling down, signing and accepting without a second thought? But what happens when you have questions later?
Legal agreements often overwhelm individuals with complex terminologies and convoluted jargon, hindering their understanding and ability to make informed decisions.
“The importance of plain language in contracts and agreements cannot be overstated, as it plays a crucial role in ensuring consumer protection and promoting fair business practices,” says Alana Lee Slinger, candidate attorney at commercial law firm Gillan & Veldhuizen Inc.
LEGAL PROTECTION
According to Slinger, the Consumer Protection Act (CPA) aims to protect consumers from exploitation while promoting fairness and transparency between parties. Under the CPA, suppliers have a legal obligation to act in good faith and provide clear, concise and understandable agreements or contracts to consumers. The plain language requirement, as stipulated in Section 22 of the CPA, aims to shield consumers from unfair, misleading or deceptive business practices.
The right to disclosure of information, conferred by the CPA, ensures that consumers have access to information that affects them, presented in plain and understandable language. This requirement applies to all legal documents, including property agreements, lease agreements and fixed-term contracts.
“ORDINARY PEOPLE” SHOULD UNDERSTAND IT
To meet the plain language requirement, Section 22 of the CPA sets out criteria that must be met. The wording of documents should be understandable to an average consumer with basic literacy skills and minimal experience, without requiring excessive effort to comprehend the content, significance, and importance of the notice, document, or visual representation.
Factors such as context, comprehensiveness, consistency, organisation, form, style, vocabulary, usage, sentence structure and the use of illustrations and headings should be considered.
CLEAR COMMUNICATION
In property agreements, it’s not uncommon to encounter clauses that could stump even the most seasoned puzzle-solvers. For instance, the “quiet enjoyment” clause states that the tenant has the right to “quietly enjoy” the premises. While it may sound straightforward, it leaves room for interpretation. Does it prohibit parties or loud music, or does it extend to noise from neighbours or construction work?
Then there’s the “force majeure” clause, a true head-scratcher. It refers to unforeseeable events like “acts of God”, but what exactly falls under this category? Does it include natural disasters, pandemics or other unforeseen circumstances? And let’s not forget about the “indemnification” clause with its complex language about holding parties harmless. What are the limits and scope of this obligation? These examples demonstrate how confusing property clauses can be, leading to misunderstandings and potential conflicts if not clarified in plain and understandable language.
THE RIGHT APPROACH
An example of a clause that satisfies the plain language requirement in property agreements is: “The Tenant shall be responsible for the payment of ordinary consumption charges levied on the premises such as electricity, water, sanitary, sewerage and refuse removal services that are not included in the annual rates and taxes.”
“This clause is clear, written in plain language and avoids ambiguity or vagueness, thereby meeting the requirements of Section 22 of the CPA,” explains Singer.
PLAIN LANGUAGE IS COMPULSORY
Failure to comply with the plain language requirement and the right to disclosure of information can have serious consequences for suppliers. Consumers who find agreements or contracts incomprehensible can file complaints with the National Consumer Commission and/or approach the special consumer court to enforce their rights and seek appropriate remedies. Suppliers may face imprisonment for up to 12 months for breaching the CPA.
Given these implications, suppliers have a significant responsibility to draft agreements in plain and understandable language. Failure to do so may render an agreement unenforceable.
