Ban the bull: terms and conditions

Author : em-admin

Posted : 12 / 12 / 09

As we continue our ceaseless quest to seek out and rehabilitate the bulls of business-speak, we come up against an old and imposing foe.

Imagine yourself, if you will, a few short days from now. You are sat at your computer; you’ve just completed your Christmas shopping at Tesco.com, and are poised at the virtual checkout. Then you realise: you haven’t read the terms and conditions.

Well, of course you haven’t. No-one reads terms and conditions. Despite the fact that with almost every online action and purchase we are entering into some kind of contract, we all breezily tick the box with no real clue about what we’re agreeing to.

And little wonder. Assuming you made it through to number 20 on the Tesco site, you’d then be faced with this:

20. Miscellaneous

You may not assign, sub-license or otherwise transfer any of your rights under these Terms and Conditions.

If any provision of these Terms and Conditions is found to be invalid by any court having competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect.

If you breach these Terms and Conditions and Tesco.com ignores this, Tesco.com will still be entitled to use its rights and remedies at a later date or in any other situation where you breach the Terms and Conditions.

Tesco.com shall not be responsible for any breach of these Terms and Conditions caused by circumstances beyond its control.

A person who is not a party to these Terms and Conditions shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions but this shall not affect any right or remedy of a third party which exists or is available apart from that Act.

Legalese – English translation

The problem with legalese is reconciling the official vocabulary with accessible language that the average person can easily take on board. After all, the average person doesn’t generally have legal counsel with them while surfing the net. And isn’t the most important thing for them to understand their position?

For example, in this context ‘remedies’ refers to a legal means of redress – so, the seeking (by Tesco.com, in this case) of compensation or other penalty in court.

Other words which may differ slightly in a legal sense from their more commonly known sense include (and mean here):

• provision – term or condition

• competent – legally qualified or fit

• jurisdiction – authority or control

• validity – effective or legally binding nature.

Other terms are not entirely clear: how is a person ‘not party to’? If it wasn’t them who ticked the ‘agree’ box? If they’ve never read the Ts and Cs? If they’ve never seen a computer?

If you’ve said it once, stop

On top of unfamiliar language, the sheer length of Ts and Cs can be off-putting. It’s understandable that companies want to cover all possible bases, but there’s still fat to be trimmed here to help the reader digest.

• ‘Assign’, ‘sub-license’ and ‘transfer’ may have subtle legal distinctions. But to you, me and the gatepost they mean basically the same thing.

• If the ‘validity’ (or legally binding nature) of a ‘provision’ (term/condition) is unaffected, surely it goes without saying that it is still ‘in full force and effect’.

• ‘Exists or is available’: is there really a distinction here?

Keep it active

The second paragraph begins in the passive: the ‘what’ (the provision being found to be invalid) comes before the ‘who’ (the court with competent jurisdiction). Although this may have been done to highlight the ‘what’ rather than the ‘who’, it also makes it extra wordy and difficult to take in.

So, with a few more snips here and there, we have:

You may not in any way transfer any of your rights listed in these terms and conditions.

If any authorised court finds that any one of these terms and/or conditions is not legally binding, this will not affect the legitimacy of every other term/condition listed.

If you breach these terms and conditions and Tesco.com ignores it, this does not mean that Tesco.com cannot later pursue legal proceedings (including going to court) against you at a later date or after a separate breach.

Tesco.com will not be responsible for any breach of these terms and conditions caused by circumstances beyond its control.

These terms and conditions affect only the person agreeing to them. Any other person will have no right under the Contract (Rights of Third Parties) Act from 1999 to the effects of any of these terms and conditions. However, this does not affect any other rights or legal means of seeking justice this third party may have from elsewhere.

Ok, we still can’t guarantee people will be lining up to read it, but at least it should make more sense if they do.

Remember, if you come across any bewildering business gobbledegook, email it to us. We’ll send you a free copy of our style guide for your trouble.