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Overdoing ALL-CAPS in a contract can be self-defeating, says court

Contract drafters sometimes put entire paragraphs into all-capital letters in the hope of making them “conspicuous”; you’ve probably seen examples of this particular disorder in warranty disclaimers and limitations of liability. But keeping the all-caps going for line, after line, after line, can be self-defeating, as the Georgia supreme court observed (arguably in dicta):

No one should make the mistake of thinking, however, that capitalization always and necessarily renders the capitalized language conspicuous and prominent.

In this case, the entirety of the fine print appears in capital letters, all in a relatively small font, rendering it difficult for the author of this opinion, among others, to read it.

Moreover, the capitalized disclaimers are mixed with a hodgepodge of other seemingly unrelated, boilerplate contractual provisions — provisions about, for instance, a daily storage fee and a restocking charge for returned vehicles — all of which are capitalized and in the same small font.

Raysoni v. Payless Auto Deals, LLC, No. S13G1826, slip op. at 6 n.5 (Ga. Nov. 17, 2014) (reversing and remanding judgment on the pleadings) (emphasis and extra paragraphing added).

The drafting tips here, of course, are:

1. Be judicious about what you put in all-caps.

2. Don’t use too-small a font for language that you want to be conspicuous.

I’ll be adding this to the commentary of the Common Draft research note on conspicuousness.

Comments on this entry are closed.

  • Neal Huffman 2014-12-22, 2:05 pm

    Are CAPS necessary? Is there any jurisdiction which mandates using all CAPS?

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