The Blog

Confusion By Design

You probably signed a contract today. If you uploaded an upgrade to an app on your mobile phone, or you ticked the box that allows you to use the programme that sorts your music, or you applied for a credit card, or entered a competition, or you bought a hundred million pounds of securities on behalf of the financial organisation you work for, then you signed a contract today. You signed the contract because you wanted to get on with your life and you did not think that the organisation that was asking for your agreement was actually trying to rip you off, or take advantage of your trusting naivety. You ticked the box that stated that you had read the terms and conditions despite never having even the slightest intention of reading said terms and conditions.

People say that the contracts that we sign up to on an almost daily basis are unnecessarily complicated, but that is not true. They are necessarily complicated because the intention is not to illuminate and make clear, the intention is to confuse and bewilder. They write them that way to make sure that you don't read them. You may be signing up for all the excitement that the internet has to offer, but first you must agree that you will be penalised if you do not surrender to the providing company anything they may ask. Even if they are completely hopeless and you can't get them on the phone, you are still stuck with them because of what they buried in the sub clauses and addenda.

This will be annoying but not as annoying as, say, buying millions of pieces of poor people's mortgages, all mixed together so that even Einstein would be hard pressed to know whether they were worth anything. This might be so annoying that it might bring down the once venerable bank that you work for and begin the process that leads to the collapse of the whole wide world. The procedure would have been the same: you signed up for something that you were told was in your best interests, so you didn't read the small print because you are trusting. In business, being trusting is also known as being a mug, and we are all mugs.

I have ticked every agreement box to every computer programme I have ever downloaded without reading a single syllable of what it was that I was agreeing to. Companies may have given themselves access to my computer's inner recesses and I may have agreed to it. They may be reading this right now, as I type. I am probably breaking the terms of the agreement by even mentioning it.

Mobile telephone contracts are similarly obtuse and bewildering. How about this: "By subscribing to the service, you are agreeing to pay any and all user charges applicable as notified by Us to you from time to time". I am no legal expert but doesn't that suggest that the company that wrote that can charge me anything they like, whenever they like and I will have to pay it? Some contracts you sign up for actually state that the terms and conditions may change at any time and you have also signed up to those, whatever they might be. Of course, you could just refuse, believing that the law will see sense and do the right thing. Sadly, quite often the law would not recognise the right thing if it bit the law on its giant wobbly bottom..

You could fight them, that is your legal right. You may win and be free of those onerous shackles. It is a simple process - all you need is a massive amount of money and all the time you have left on earth. By taking the company you have entered into an agreement with to court, you will also be further enriching the very people who came up with those clauses in the first place - lawyers. This is exactly what they want.

Legal agreements are written in the sort of language only another lawyer would understand. It is a self perpetuating system - lawyers express simple nations in language that is indecipherable to anyone but themselves. They are forcing you to use them and by using terms whose meanings can be fought over in court, they are securing the future health of their profession with every sub-clause they pen.

The consumer magazine Which has found that just one in two hundred people can figure out if one mortgage deal is better value than another. You know the sort of thing: fixed rate versus variable; arrangement fees and termination penalties. They asked 1,000 citizens to rank the cost of five mortgages in order of value by examining the terms and conditions. Five managed to figure it out. Five! Out of a thousand. These were not dummies selected for their slack-jawed ineptitude, they were normal, mentally alert people like you and me, and it was beyond them.

They failed not because the mortgage lenders had mistakenly clouded their products in confusion but because the confusion was the intention. Mobile phone tariffs are similarly hard to rate in terms of value, energy tariffs are bewildering to compare and financial products that banks sell to each other take opacity to levels previously unimagined. They could use those contracts as invisibility shields - no light passes through them.

None of this is by accident. The companies' legal departments do not make the terms and conditions confusing and impossible to understand because they are not good at their job. Making them impenetrable and abstruse IS their job.