Signing is not understanding

Every day we accept rules we do not read. We all know it. But how wide is the gap between what the law assumes and what we actually do?

Two studies measure it.

What the numbers say

In a study published in 2014, Yannis Bakos, Florencia Marotta-Wurgler and David Trossen tracked the browsing of 48,154 monthly visitors to the websites of 90 software companies. Result: only one or two shoppers in a thousand open the licence agreement. And most of those who do open it read no more than a small portion.

In a study published in 2018, Jonathan Obar and Anne Oeldorf-Hirsch reported an experiment with 543 people, asked to join a fictitious social network. 74% skipped the privacy policy, choosing the quick-join option. Those who opened it spent 73 seconds on average. Reading it properly would have taken 29 to 32 minutes. The terms of service: 51 seconds of average reading, against the 15 to 17 minutes needed.

The best-known detail: the terms contained "gotcha" clauses, including one asking for a first-born child as payment for access. 98% missed them.

The presumption of understanding

Contract law runs on a useful fiction: whoever signs has understood, or at least could have. For centuries it held. A contract was a rare document, read slowly, often with a lawyer at hand.

That is no longer the case. We accept dozens of texts a month, on small screens, in seconds. Environments designed to make us click, not to make us understand.

In Habeas Mentem I call this mechanism the presumption of understanding. Presuming is not wrong. Presuming always in the same direction, even when the data say the opposite, is.

Shifting the burden

My proposal is simple to state. When someone designs a choice environment, the burden of making it understandable should lie with the designer.

This does not mean banning long contracts. It means asking those who write them to show that they can be understood. Clarity, not simplicity: a text can stay precise and become readable.

Today understanding can be measured. Nobody's mind needs to be read. We need to observe how people read, how long it takes, where they get lost. That is what we do at Neuro Legal Cortex.

If understanding can be measured, the presumption can become evidence.

So the question changes. Not: did you read it? But: were you put in a position to understand?