Can You Read It? I can't!

Is An Illegible Contract Enforceable?

May 12, 2023

So, how did you vote?  Do you think the court required Fuentes to arbitrate her case when the contract she was compelled to sign was illegible?

The answer is… YES.  The appellate court reversed the trial court’s order denying Nissan’s motion to compel arbitration and ordered Fuentes to arbitrate her case.

The court acknowledged that “tiny font size and unreadability make it hard or impossible for employees to read, and thus to understand the contract.”  But, the court went on: “Tiny font size and unreadability go to the process of contract formation, however, and not the substance of the outcome.”  In short, according to this court:  “Font is irrelevant to fairness.”

What do you think?  This was a 2-1 decision.  The dissenting judge wrote:  “The arbitration agreement speaks for itself.  The print is so fine it is unreadable without magnification.  See if you can read it without giving up… Given the complete unreadability of this arbitration agreement, I would find an extremely high degree of procedural unconscionably, requiring, as the sliding scale analysis allows, a low degree of substantive unconscionability.”

The dissenting judge disagreed with the majority’s conclusion that the illegibility of the contract goes only to procedural, not substantive, unconscionability.  According to the dissent, “the ridiculously tiny print in this agreement prompt for me a discussion of mutuality, a consideration for substantive unconscionability.”  More specifically, “the employee who is given this illegible document cannot discern the terms and provisions… if you can’t know what you are signing because the other party gives you only an unreadable copy, the stronger party is imposing unknowable terms on the weaker party… Their unknowability is sufficient to ’shock the conscience.’”

The dissent’s view is concisely summarized as follows:

“Watering down unconscionability analysis is not what I have in mind. Acknowledging the obvious is my intention.  Holding a signatory to an illegible contract that is also as prolix as this one strains the concepts of mutuality, fairness and common sense.  If an employee literally cannot read the contract, how is it substantively fair?”

So, there you have it.  The appellate court has held that an employee can be forced to arbitrate an employment claim even though she (like just about anyone else) could not read the contract she was required to sign.

I don’t know about you, but I had to look up the word “prolix.”  It means “tediously lengthy.”  I hope you did not find this discussion prolix.

Ready to book a mediation?