Unfortunately this puts a huge burden on small businesses and individuals, as it requires them to know precisely what is and isn't enforceable in a contract, as they'd no longer be able to rely on templates. For example, the vast majority of leases are templates, and almost all include unenforceable terms.
Further, contract law is primarily based in common law, which means a lot of terms that are inserted aren't definitively legal or illegal and it comes down to whether or not they are "reasonable". In this example, almost all of the demands from Uber could be reasonable in an NDA, but are pretty clearly not reasonable in this case. However, when and where terms are reasonable isn't exactly codified anywhere.
It's absolutely a problem, but punitive liability on the drafters on contracts just creates a power imbalance somewhere else.
It wouldn't be a burden on small businesses and individuals who are already doing the right thing and not asking customers to agree to crazy, unenforceable terms. And for those companies using boilerplate templates, what stops them from just using a template that only includes reasonable, obviously enforceable terms? Given the choice between downloading the "minimal, enforceable" template and the "questionable, you might get sued over this" template, which one would they go with?
I always thought a good way to go would be to build a standard set of "debugged" contracts, that can be filled out "mad libs" style. The terms of service on almost every app could be 90% built from a short list of common components, mosttypical employment contracts are pretty much identical.
When one of those contracts hits the court, almost all the technical details have been thoroughly discussed, leaving loads of precedent to stand on. The consumers know there's no surprises in it, and the businesses know they're going to have a quick and predictable time if there's a dispute. Eventually, people would start to look at you very suspiciously if you didn't want to use a standard contract-- what scam are you trying to work on?
The concept of "let's let anyone write arbitrary contracts and sort it out later" feels strangely 19th-century-quaint today. It relies on nicities of a different era: The two parties probably had reasonably equal access to legal support and knowledge, the negotiations were being done in good faith rather than as a land grab for maximum indemnity/payout, there was a full opportunity to negotiate instead of take-it-or-leave-it clickthroughs.
I do understand how we got to this present condition, but it still does not justify the ongoing harm from the practice.
I'm not talking about terms that merely could be at odds or attempt to carve out a narrow exception from prevailing law, but rather wholesale contradiction. Templates aren't a problem, but rather the solution.
Landlords are some of the worst offenders, actually. How many tenants have a dispute, read over their lease, and incorrectly think they have no options but to submit?
Landlords can suck, but most leases are templates, and are not actually written by the landlord. Putting liability on them means that landlords suddenly are required to have a legal understanding of contract law (which, as I mentioned, is riddled with concepts like "ordinary wear and tear" and "reasonable accommodations" that aren't cut and dried). What that will do is disincentive individuals from going into the rental market, and consolidate the industry further towards those who have the resources to employ lawyers to draft said contracts and take disputes to court.
I don't mean to derail this even further but I'm going to anyway. My gut reaction is...So what?
Landlords will absolutely hammer tenants over even the slightest thing in a lease (so will tenants, for certain). To require that the contract the landlord puts forward be actually legal and reasonable does not move me in the slightest. The landlord has almost all of the power, both economic and market-moving, and is under no requirement to fairly negotiate a lease with a prospective tenant. This might not be a problem in areas with a glut of rental properties but it is for sure a problem in areas with a glut of prospective tenants.
By way of example, I'm living under a lease right now that was presented on take-it-or-leave-it conditions but that I cannot ever fulfill due to at least four requirements I read in it. The most hilarious is the requirement that my pet be covered by a pet license "issued by [local county] for household pets" and failure to have such a license is deemed "a material violation of the lease," subject to immediate notice to vacate when the landlord so chooses. The problem is, I can't ever do that because the county listed happens to contain the city I am in but the county does not issue pet licenses to residents of my city. Only my city does, but the lease does not require a city license; only a county one.
The point is that increasing the regulatory compliance burden actually gives landlords more power, as it will consolidate property ownership amongst those who have the ability to employ lawyers to argue for the reasonableness of their terms.
Nonsense, it simply means they switch to templates which don't contain abusive, unenforceable clauses.
Lawyers would of course have to draft those templates. But they would rapidly end up being offered for $199 on document-prep websites which sell them already, along with divorce papers and bankruptcy filings.
I've personally seen two terrible ones in recent history, and they were terrible precisely because they weren't standard templates. One was a long-winded attorney-crafted legalese designed to mislead tenants. The other was basically a DIY anti-precedent screed against tenant's rights, that loved to use that word indemnify. I was starting to wonder if that landlord had forgone buying property insurance or what.
A "template" supplied by an attorney, Nolo, or Staples is not going to create liability for a landlord. That's a complete red herring. Read the pdf I linked for a classification methodology to grade just how brazenly in conflict some clauses can be.
That sounds terrible. The law isn't cut and dry like that: it's interpreted by judges, who are legal experts.
You're basically making contracts extremely risky to use for their intended purpose, or at least any contract that isn't a cookie cutter agreement for a well-investigated issue.
Further, contract law is primarily based in common law, which means a lot of terms that are inserted aren't definitively legal or illegal and it comes down to whether or not they are "reasonable". In this example, almost all of the demands from Uber could be reasonable in an NDA, but are pretty clearly not reasonable in this case. However, when and where terms are reasonable isn't exactly codified anywhere.
It's absolutely a problem, but punitive liability on the drafters on contracts just creates a power imbalance somewhere else.