Lord Denning MR was arguably the most important English judge of the twentieth century. As first-year law students at university, IP Draughts and his fellow student, Andy Livesey, sent Lord Denning a telegram to congratulate him on his 81st birthday, and received a very nice letter in reply.
In the area of contract drafting, one of the more striking of Lord Denning’s judicial comments was about the need for a “red hand” in the margin of a contract, to point to a one-sided contract term. This comment was made, obiter dictum, in the case of J Spurling Ltd v Bradshaw [1956] EWCA Civ 3. What he actually said was:
I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.
In practice, this comment has not led to a proliferation of marginal manicules (the printer’s name for a pointing hand) in English law contracts. Lord Denning’s comment has largely been ignored by contract drafters, and can be viewed as a historical curiosity. Sometimes, IP Draughts includes a warning statement at the beginning of a set of terms of sale, pointing out that the terms limit or exclude liability.
Manicules have fallen out of fashion, but at one time they were frequently seen in street signs and other public places. Nowadays, a simple arrow tends to be used.
A beautiful, 1933 edition of Aesop’s Fables, printed by Oxford University Press, used them as a design feature.
In modern typography, the quickest way of finding them may be to look in the Wingdings font of Word.
The closest equivalent to Lord Denning’s red hand in US laws may be the requirement, under Article 2-316(2) of the Uniform Commercial Code, for disclaimers of certain implied warranties to be “conspicuous”:
…to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.
Conspicuous is defined in Article 2-103 as follows:
“Conspicuous”, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. A term in an electronic record intended to evoke a response by an electronic agent is conspicuous if it is presented in a form that would enable a reasonably configured electronic agent to take it into account or react to it without review of the record by an individual. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:
(i) for a person: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language; and
(ii) for a person or an electronic agent, a term that is so placed in a record or display that the person or electronic agent may not proceed without taking action with respect to the particular term.
IP Draughts understands that many US States have adopted these provisions of the Uniform Commercial Code, but is not an expert on this subject and would welcome comments from US readers on how widespread is the adoption of this part of the UCC, and whether any other contractual provisions must be displayed in conspicuous text under US State laws.
In many US contracts, it is common to see disclaimers typed in BLOCK CAPITAL LETTERS, which would appear to comply with paragraph (A) quoted above. Very few drafters of US contracts make use of the other available methods of making text conspicuous within the above definition, such as use of bold text, or a different colour or font. IP Draughts would like to encourage US contract drafters to be more creative, and to consider using a manicule. This method is anticipated by the wording quoted above, which refers in paragraph (B) to “symbols …that call attention to the language”.
Mr Pettifog
Mark Anderson
Paul Maclennan
Stephen Brett
Victor Warner
IP Draughts 
I agree with those who think allcapping reduces readability. The drafters of the UCC defined “conspicuous” to mean that the text’s victim ‘ought to have noticed it’. A blind Frenchman walking toward a cliff might *notice* a cry of’ ‘Don’t take one more step forward!’ without *understanding* it. A conspicuity requirement should focus on notice of meaning, not mere existence, of text. An English sentence with no typographical emphasis would be less conspicuous but more comprehensible than a bolded, capitalized, italicized, and underlined sentence in Proto-Indo-European. I think commercial parties use allcapping to obscure hostile text while satisfying the letter of the law. Love the manicule.
I think commercial parties sometimes use block caps because they have seen it in another contract and assume there is a good reason for it, but don’t care enough to find out why. It is disappointing when this is done by non-US lawyers, and when there are no implied warranties of merchantability or fitness for purpose that need to be disclaimed.
Reblogged this on IP Draughts and commented:
This golden oldie has a timeless quality, and gives IP Draughts another excuse to use a manicule. (No, not manicure, mr predictive text.)
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Good points. Definitely hate the all caps and overuse of ATTENTION GRABBING TEXT. Just make your contract and form clear and concise.
Gotta make sure Ridacto accepts and recommends manicules now! 🙂
Thanks for sharing.
Another way to dress up a contract provision to make it conspicuous, at least on the screen, is to use the “text effects” font formatting. One has a small menu to choose from, the most sedate being the “marching ants” marquee effect in either black or red. More exciting alternatives include a blinking background, “Las Vegas Lights” (same as marching ants but parti-colored), shimmer (not recommended as it impedes rather than fosters legibility) and sparkle. I have no idea how these would look on a printed page, but the concept bemuses. Think of Mr. Pettifog in a Hawaiian shirt and Elvis shades.
I have no idea what this man means. What is a Hawaiian shirt? Do they sell them in Ede & Ravenscroft?
Yes, but you have to go discreetly into the back room for them.
I tend to use bold font faces which are (in my view) more aesthetically pleasing than all caps and of course easier to read. Bolding some but not all text can be useful too.
Putting really important exclusions at the head of the contract do make them more likely to be enforceable, but clients often tell me it seems really negative to have that sort of thing “up front” and they would rather hide it away somewhere deeper down. I advise them on the risks, but ultimately its their contract.
I will consider using an manicule.
Yes, it would be great if everyone dropped the use of capitals for lengthy legal terms. Capitals may draw attention to the text, but simultaneously make it much harder to read. There is not much excuse for persisting with this ugly form of highlighting, when there are so many other forms available.
In re Bassett, 285 F.3d 882 (9th Cir. 2002) (“Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded. In determining whether a term is conspicuous, we look at more than formatting.”) Enough said.
Indeed it’s the norm in the USA for contracts to have a sentence or two in all-caps. Occasionally they’re seen in contracts that are beyond the scope of the UCC. Bold and italics are used rarely; I don’t recall ever seeing color in an execution-ready contract here. Perhaps I’ll try a manicule in a draft and see what happens.