Applicability of the Duty to Read Rule to Non-English Speakers - With a Focus on the Discussions in the U.S. -

다국어 초록 (Multilingual Abstract)

Under the duty to read rule, a person who signs a contract without reading it is responsible to the contractual term even though he did not read the term. The issue is whether this duty should be applied to non-English speakers who, due to their linguistic deficiency, could not read the contract which is written in English.
A more specific issue arises when they enter into consumer contracts with various kinds of businesses and industries. These consumer contracts usually contain boilerplate terms in the forms of standardized or adhesion contracts which often contain unfavorable terms to the consumers. The boilerplate terms are difficult to comprehend and are neither given proper notice nor fully explained to the consumers. Thus, the consumers do not have a meaningful and voluntary choice in the bargaining process which can be equated with the lack of actual consent.
However, since the consistent and predictable interpretation of contract terms is necessary to achieve the contractual purposes, the boilerplate terms should be recognized as valid and enforced as such, which is in accord with the freedom of contract doctrine.
Boilerplate contracts play the important roles in the market system of mass production and distribution. The contractual bargaining processes are facilitated and streamlined because of the standardized form and boilerplate contracts which will lead to the reduction of transaction costs and merchandise prices for consumers subsequently.
If the boilerplate terms must be overhauled as a whole, that could mean enormous inefficiency in the operation of national market thereby causing huge adverse effects to the national economy.
The duty to read rule comes with several benefits such as the enhanced value of written contracts, the preservation of fairness to the seller, the protection of sellers' reliance interest, the enhanced predictability and enforceability of contracts and the incentive to read contracts. However, this duty is inapplicable if the consumer can prove the existence of fraud or unconscionability.
It can be argued that the duty to read rule should not apply to non-English speakers.
First, non-English speakers should be entitled to the same level of legal protection that minors and mentally incompetent people have. Even if they sign a contract, the other party cannot consider their manifestation as assent under the objective doctrine if the other party knew or had a reason to know that they are too young or mentally incompetent to contract. Second, non-English speaking parties should be excused from the strict application of the duty to read rule because there is a high degree of difficulties and obstacles for the non-English speaking parties in proving the affirmative defense of fraud.
On the other hand, the strict application of this duty is supported by Rest. § 19(3): “the conduct of a party may manifest assent even though he does not in fact assent,” and the contractual rule that the meaning of a term is to be interpreted under the more reasonable party's understanding. Non-English speakers should be bound by its terms as long as the seller did not know or had no reason to know that the non-English speaker would not have signed a contract if he had known that the contract contained a specific term. Also, when a non-English speaker signs a contract without seeking its translation, it would be reasonable for the other party to presume that the non-English speaker assents to the terms.
It seems to be unfair and unjust to apply the duty to read to non-English speakers strictly due to their language barriers. So it is proposed that the duty to read rule be supplemented with the duty to provide translation by the contract drafters. Providing translation will be much more efficient for the sellers who have greater resources and are in a better position to articulate the contract terms than the non-English speakers who need to take time and efforts individually in translating or findi...

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