Contractual "fine print," frequently called boilerplate, involves so-called standardized provisions that may surprise a party to the contract or are considered to unfairly favor a party. Based upon the specific facts, one or more of the following legal challenges to fine print may be successful. Always consult experienced legal counsel when creating or challenging a contract.
The following are some possible legal challenges to contractual provisions in no particular order:
1. There was no mutual agreement since there was no opportunity to reject the provision. For example, a written copy of the contract with the unknown provision was only made available after a three day rejection period had passed.
2. The provision violates federal or state statutes or regulations. For example, the right of a qualified employee to overtime pay may not be contractually given-up (waived).
3. The document containing the provision does not appear to be a contract. For example, a form labeled "purchase receipt" might not be reasonably understood to create a contract.
4. The provision was too inconspicuously printed, considering the importance of the provision. For example, a provision giving up a right to sue for negligence may need to be written in large type.
5. The provision was not negotiated and is contrary to customary terms. For example, a radical change in language from prior contracts between the parties may need to be specifically pointed-out.
6. The provision was misrepresented to an unsophisticated consumer. For example, a court may consider, in the interest of fairness, a significant difference in education between the parties.
7. The provision was written in a language that a party did not understand. For example, one may be required to provide an accurate translation of a document to a non-English speaker.
8. An ambiguous provision is interpreted against the party who wrote it. For example, a personal guarantee referring to a loan "applicant" does not bind a signing corporate official when the term "applicant" elsewhere only referenced the corporation.
9. A court considers the provision to be unconscionable. A court has broad powers, in the interest of justice, to refuse to enforce a grossly unfair agreement.
10 . The provision is considered contrary to public policy. For example, a provision in a public transportation ticket exempting the carrier from all responsibility for injuries or accidents might be considered contrary to public policy if no alternative means of transport were available.
11. The provision is contrary to a professional licensing standards or a binding professional ethical code. For example, a licensed attorney may not engage in criminal conduct even if a contract purported to allow it.
12. The provision is part of a contract that was created by fraud or duress. For example, a party may challenge the enforceability of a void or voidable contract.
13. The provision grants one party rights or remedies that are not available to the other party. For example, a provision allows one party a thirty day grace period to cure problems but denies this right to the other party.
14. The provision applies to other agreements between the parties with no notice of this provision in those agreements. For example. an arbitration provision purports to apply to all subsequent agreements, even if those agreements are silent concerning arbitration.
15. The provision allows one party to act grossly negligent or with a specific intent to injure the other party. For example, a provision purports to exempt one party from all liability for gross negligence or intentional torts.
While freedom of contract and the enforcement of contractual provisions are fundamental legal concepts, courts view their responsibility as including broader considerations of justice and fairness. These considerations may favor a party whose legal counsel challenges a contract's "fine print."