Matthew's Journal

I think it's only right if the terms in question were unclear, unrevealed or not within the realms of whatever the industry standard is in the area. Or if some form of outside pressure was brought to bear that would preclude you from analysing the terms sufficiently, or cause you to sign despite objections.

For example : Contracts to buy timeshares signed at the end of a high-pressure sales pitch should not be binding (or, rather, should have a "cooling down" period).

In an ideal world: no. Then again, in an ideal world, the issue wouldn't come up.

If:

a) Signing a contract was a much rarer event than it is,
b) Contracts were more clearly written, and things that were likely to be contentious were seperated from all of the boring motherhood-and-apple-pie stuff, and
c) Contracts were made available in advance for your perusal so that you (or experts acting on your behalf) could examine them *before* going through all of the hassle of applying for something,

and consequently,

d) this actually meant that people were much less willing to try and slip crap terms into contracts than they are currently,

then I'd be a lot happier for "fair" to be decided as "what was agreed at the time the contract was signed" rather than a much broader notion that encompasses social attitudes, legislation and legal precedent.

You really, really should make sure you understand a contract before you sign it.

Yes, if it's something unforeseen at the time by both parties which ends up giving a huge advantage/disadvantage to one person, especially if the intention behind the clause is something different.

This would tend to be due to bad drafting, although a lot of these things only become obvious in hindsight.

Hypothetical example:

You insure your house for all risks, but the small print excludes damage caused by a riot, and gives the current police definition of a riot. The reason behind this is that the police will pay compensation for riot damage, so you don't need insurance.

Part way through the policy, the police change the definition of a riot slightly. You're no longer covered (Or covered twice!).
It would, I think, be moral to challenge the policy to suggest it should read 'whatever is defined as a riot by the police when the incident happens'.
Of course, the insurance company might be able to argue that factoring in possible changes of definitions would have made the policy more expensive.

However, as the insurance company were the ones who drafted the contract, I think they have more of a moral obligation than the purchaser to ensure the contract is drafted well enough that the small print conforms to the underlying intentions and expectations of the contract.

I think 'yes' but only if you were somehow forced into signing the contract and couldn't get it changed. For example Russels have a lot of property in Cambridge and it is entirely possible that you might be forced to rent with them or not have a(n affordable) house within comutable distance of your work - which gives them a lot of power over you. Or for example if there are very few jobs and you need one then you might not be able to argue about the contract.

Also you might not find out that your contract is 'unfair' untill you have signed it. For example I am happy with my employment contract but if I were to discover that if they had hired a similarly qualified man he would have been paid more then that is unfair.

I don't think you should ever challenge 'unfair' contracts that you didn't need to sign in the first place - like holiday bookings for instance.

When dealing with businesses, feel free to construe everything in the way maximally favourable to your own interests. They'd do the same to you. This only doesn't hold if you have some evidence that they might be "nice", willing to give you a break in some way.

I think the way that, in practice, lettings contracts are largely exploitative of the tenant, whereas they have a surface veneer of mutuality is a result of the greater iniquity in society.

You cannot have a fair contract between someone who is relying upon a contract for shelter and someone who's relying on it for something less fundamental (in the Maslow sense) in a situation where there's a cartel on shelter, or inelastic supply; any more than you can have a fair contract between someone who has all the food and someone who is hungry.

I must say that I'm a little amazed that you feel that a letting agency, whose principal purpose seems to be to dehumanize the interactions between landlords and tenants and generally perpetuate injustices, would be affected by moral arguments, or that these people who have some residual contractual obligations over you, is a politic place to start in dealing with housing injustices, beyond any material gain.

I'm sure that many of the people who work there, if not all of them, are trapped in a cycle of work, debt, and so on, and are victims of the injustice as much as you are. It's a kind of institutional immorality, rather than a personal one.

It seems a little like titling at windmills to me, though I suppose it's an honourable end, all other things being equal.

I find the "you agreed to it" responses puzzling. If it were a fair bargain then I would agree but contracts between individuals and people like letting agents (and big companies in general) are rarely fair bargains.

In particular:

Terms which are unfair ought not to be in form contracts at all: putting them in is both immoral and illegal (in the sense that if someone can be bothered thay can be struck down and the organisation told not to include them any longer). So any organisation putting unfair terms into its contracts ought to expect them to be ignored, struck down, contested, etc.

It is therefore fair enough to sign a contract knowing that some of the terms might not be enforceable and so you might not need to abide by them. This is no more of a sharp practice than putting the terms in to start with.

As others have noted, it is hardly the case that you have equal bargaining power. If you object to terms because they were unfair, the letting agent will show you the door and your choice of housing will be seriously restricted.

Note also that you are doing unto them just as they would do unto you. No-one is seriously suggesting that your counterparty would avoid taking advantage of any and every loophole to gain advantage. Indeed in your tale we see quite the opposite. If they are willing to do whatever they can get away with then it's quite fair for you to do the same. You owe them no quarter.

Indeed, making trouble for organisations who do unfair things like this is a social good: it makes it harder for them to get away with oppressing people with less favourable circumstances.

I would supply my name but I'm a tenant with the same letting agency and don't want to provoke them into any further outrages against me - beyond those I have already experienced. I will definitely be putting the boot in myself when the time comes.

I routinely ask for "You may not work for a company with an office within X miles of any of our locations within 12 months of leaving" and "You may not deal with any of our suppliers in another job within 12 months of leaving" clauses to be removed from my employment contract on the basis that it would make me unemployable. No employer has yet refused my request.

I wouldn't bother quibbling, say, a BT phone contract when I took it out however.

I think that you should take care to study a contract before signing it, and if there are terms that you believe unfair and by which you don't intend to abide, you should make it clear to the other party before they sign that you expect to challenge them in court if they try to push the issue.

It is clearly moral if, at the time of signing, you indicated that the term in your opinion was unfair and that it was your intention to challenge it on that ground should it ever apply.

I think it is also moral in a wide variety of other situations. The only situation where I suspect it is not moral is where the term was specifically negotiated.

I'm in agreement with whoever said that you should be worrying about what is most sensible rather than what is most moral. Not because morality is not an issue, but because I suspect that you have a better chance of behaving morally if you do what is sensible than if you use moral arguments to justify a particular course of behaviour.

Pragmatically, I'd recommend ringing Cambridge Trading Standards office and seeing if they're interested. A colleague had a very useful and supportive set of interactions with them (when dealing with a rather different kind of business).

Furthermore, if a few determined people sue Russells and win, it'll just increase their overheads - the cost will be met by other (oppressed) tenants; if several people direct their complaints first through Trading Standards, they'll take note, and may start taking action to improve things for everyone.