Roofers, Hamlet and T&Cs

April 3, 2012

In a distant and exceedingly dim past, I recall acting for an enterprising odd-job man who supplemented his income with a little ruthless roofing. Sadly his enterprising nature had a rather unpleasant twist. He used a con that remains the staple diet of the many who cannot make it in the financial services industry but want to get their hands on the hard-earned cash of the vulnerable (and, what’s worse, it still gives Matt Allwright a living).

According to the police, his modus operandi was to knock on the door of an elderly but reasonably well-to-do householder and draw his or her attention to the very minor problem that he had noticed in their guttering or a loose tile that an expert eye had identified. He then pretended that he was dismayed to find that the householder was too frail to fix the item, enquired about the possibility of DIY by sons or other relatives and finally, while protesting that he was ‘a fool to himself’, offered to get his ladder and fix the problem there and then at no cost to the aged and grateful householder. Of course, once up the ladder and on the roof, he found that things were a lot worse than expected and that really it needed fixing before the bad weather came etc etc. A hasty ‘very special’ estimate for the work was then suggested and, depending on the proximity of opening time, a quick cash fix or a longer and more expensive job was completed. Most of the fixes involved putting the tiles back into position that had ‘slipped’ on his first trip up the ladder.

Key to the roofer’s success was that he knew that few of us are likely to want to get up a ladder to view problems in our roof at close-quarters. And anyway, at least in the period before opening time, he appeared reasonably respectable. He had that essential reference of the workman – a van with his name on it.

I have been thinking about my dishonest roofer in the light of reports that many of our favourite suppliers are offering T&Cs which are so wordy that they exceed Hamlet in length – Paypal requires you to read 36,000 words, Apple iTunes offers 20,000, Facebook has 11,000 and Amazon Kindle has 7,000 (so who needs to read a book after that?). I confess that I am a little late in reacting on this story which first saw the light via Which? at the end of March, but I would point out that the whole of my leisure time over the intervening fortnight has been devoted to reading the Google T&Cs on a smartphone. That was only 10,500 words but had a lot in common with Hamlet – I was frequently driven to thoughts of suicide and I did indeed ‘squeak and gibber’ in the streets, left with but the trappings and the suits of woe. As I remarked to my wife ‘How weary, stale, flat, and unprofitable seem to me all the uses of this world!’ – whereupon she made me stop reading the T&Cs (I wonder how it ends).

Of course, the companies that publish such T&Cs know full well that we will not climb the ladder and inspect the tiles. We will tick the box and, assuming that they are respectable because they have, metaphorically at least, a very large number of vans with their name on, we will convince ourselves that we have a fair deal.

It seems to me that there is some relevant law here that is getting little attention. The Consumer Protection from Unfair Trading Practices Regulations 2008 (SI 2008/1277) are rarely cited in the great debates about privacy policies and the like. The Regulations are of course the product of the Unfair Commercial Practices Directive and swept away all manner of previous legislation, principally trade descriptions legislation but also the Fraudulent Mediums Act 1951 (not the same as fraudulent media – that was never regulated) and the Mock Auctions Act 1961. The Regulations prohibit ‘unfair commercial practices’ and those practices are not confined to misleading acts or omissions. A commercial practice is unfair if it contravenes the requirements of professional diligence and materially distorts or is likely to materially distort the economic behaviour of the average consumer.

I don’t think that there is much doubt about ‘materially distorting’. I do usually read contracts but I am not going to read one of 10,00 plus words – life’s too short. I will tick the box pretending to agree to something of which I am totally ignorant – and that is precisely what I am expected to do. The question of contravening professional diligence is trickier. One could argue that the problem with the T&Cs is that somebody somewhere has been so blinking professionally diligent that every possible contingency has been covered. T&Cs just get longer and longer – ‘as if increase of appetite has grown by what it fed on’. But there comes a point where meaning and clarity evaporate and only words are left. It cannot in my view be professionally diligent to leave the T&Cs so long.

Many companies, including many ‘enterprises of great pith and moment’, acknowledge this with summaries of their T&Cs that can be read and assimilated by an average consumer. But not all – it is a custom more honoured in the breach than in the observance.

More in sorrow than in anger, I call upon the OFT, the enforcement authority under the Regulations, to take a look at this issue and bang a few heads together. I think we all know that this is an area where clarity could be achieved if it were seriously sought after. As things stand, consumers only avoid drowning in a sea of troublesome verbiage by steadfastly refusing to get drawn into the T&Cs sea.

And finally a plea to those of you responsible for the most tedious T&Cs. If all else fails, could you consider the addition of a little action? Even Hamlet, which I venture to suggest is rather better written than the Paypal T&Cs, was deemed to require a decent fight scene and a good bit of comedy. In this multimedia age, you could surely add a little spice to your T&Cs to keep us all interested. Judging from the many cases on voluminous contracts that come before the courts, it is not as if you have much in the way of clarity to lose anyway.