Is our property sector ready for Comic Lease Agreements?
Those who are fans of agreements that have transparency, visibility, simplicity and clarity, should take note of the new global trend towards so-called “Comic Contracts”. Comic Contracts are increasingly used to enhance communication and comprehension of legal technical content. Comic Contracts aim to decipher legalese and explain in simple terms the legal processes resulting from the legal agreements that parties conclude with one another.
Comic Contracts are agreements that are –
- legally binding contracts in which parties are represented by characters,
- the agreement is captured in pictures, and
- the parties sign the comic asthe contract.
The concept of the Comic Contract was inspired by a movement called “Proactive Contracting”, pioneered by Professors Tom Barton (of the USA) and Helena Haapio (of Finland). The Proactive Contracting movement promotes: 1) the use of visualisation as an aid in understanding the text of a legal agreement, and 2) the creation of “fit for purpose” contracts which are designed for better relationships between the contracting parties. The goal of the Comic Contract is therefore to optimise the outcome of the legal relationship between the parties, no matter who they are, or what their situation is. Comic Contracts do not try to serve the interests of any one of the parties, but try to serve the relationships between the parties.
The purpose of a Comic Contract is to empower the parties to understand each other, to understand what they expect from each other, and what they are committing to. Comic Contracts step out of the “text-based” contract paradigm. Simply put, text on paper does not have to be the only way in which agreements can be reliably recorded and legally enforced. Pictures are not only useful to aid understanding of the text in a contract, but the pictures can also actually “be” the contract. This takes contracting to a new and exciting level.
The question then becomes whether the Comic Contract approach can be adopted in South Africa in the property sector, where misunderstandings between landlords and tenants about what exactly their rights and obligations under lease agreements are, have resulted in many disputes, litigation and arbitrations.
Examples of Comic Contracts in practice
A Cape Town attorney, Robert de Roy, received funding from a company called Indigo Fruit Farming to partner with Jincom to produce Comic Contracts to be used as fruit-picker contracts for their citrus farms. The project involved turning an ordinary citrus picker’s contract (with all its jargon, terms and conditions) into an entirely visual contract using illustrations that anyone can understand.
The Comic Contract was presented at the International Contract Simplification Conference in Switzerland in March 2017, to much acclaim, and it has subsequently been rolled out to around 200 fruit pickers.
Independent legal reviews of the Comic Contract have confirmed that it is legal and binding, and conforms to all requirements of labour legislation in South Africa. The plan is to extend similar Comic Contracts into other industries, including mining and construction.
Visualisation in law
Legal agreements are full of difficult-to-understand and wordy legalese. So the question was asked by a couple of Perth academics: “What if we used pictures rather than just words?” And after having asked the question, with the help from colleagues in the engineering department, they started to experiment with contracting in pictures.
Their first experiment was to create specific comic strips that communicate nondisclosure agreements, e.g. “so don’t talk about the project” and “here’s what happens if you do” and “here’s what happens if you don’t’, with very simple comic strips of people interacting with little dialogue bubbles.
Is a Comic Contract legally binding?
The question arises as to what constitutes the legally binding part of the Comic Contract. The legally binding part of the contract is the concept, i.e. simplifying complex concepts and easily getting it across. Comic Contracts make law more approachable and clear. The idea is to reduce conflict, and to focus more on driving behaviour.
Attorneys will define a contract as something that is legally binding, and by that we mean that you could take it to a court to enforce a certain right. But when you start to re-think that to an extent where you are more interested in driving behaviour, than in ensuring the enforceability of what you are creating, then you are really shaking the foundations of law.
Having said all of the above, various legal opinions have been obtained which substantiate that a Comic Contract can be enforced by a court, and that there are no reasons why a Comic Contract wouldn’t be equally enforceable than a “text-based” agreement, simply because there are pictures instead of words.
What does the future hold for visualisation law?
Legal visualiation may deal with either data and/or information or knowledge.
Data and/or information require software tools and coding expertise in order to generate images that represent complex data structures, which is similar to how programmers work. Knowledge visualisation uses a “handcrafted” approach, similar to how graphic designers work.
In the digital world, “Creative Commons” will help us to legally share knowledge to build a more accessible and innovative world. A “Creative Commons License” is a copyright licence that grants others permission to copy, distribute, edit, and build-on, your work, within the boundaries of copyright law.
For purposes of Comic Contracts, Creative Commons will allow the use of simple, recognisable icons which can be clicked on to reveal a plain-language version of the relevant legalese or legal text. If additional information is required, the full text is also available and just one click away.
The information in a Comic Contract will be layered, i.e. –
the traditional “Legal Code” (e.g. the “lawyer readable” version);
the “Commons Deed” (e.g. the “human readable” version), acting as a user-friendly interface to the Legal Code); and
the “Machine Readable” version of the Creative Commons License.
Is there a future for Comic Lease Agreements in South Africa?
It is commonly accepted that Lease Agreements are complex, and that the adoption of the Comic Contract methodology could assist to make the terms and conditions easier to understand and act upon. The aim is to effectively communicate and record both the landlord’s and the tenant’s requirements and needs. With new tools and apps being developed, it will become easier to convey the content of traditional “text-based” lease agreements in a more usable and visually engaging way. As the work progresses and new tools and apps appear, we are likely to see a major change in the property industry.
However, initially it is to be expected that there will be resistance to the idea of a Comic Lease Agreement, because it’s not familiar. A Comic Lease Agreement may be seen by mainstream legal professionals as a gimmick. The field of property law is a bit of a priesthood, with language created by property lawyers for other property lawyers, and lease agreements having been drafted in a certain fashion for hundreds of years. A Comic Lease Agreement would question that orthodoxy, and suggest that perhaps we could use pictures to capture the terms of a lease agreement to help the landlords and tenants to better understand their rights and their obligations in terms of the lease agreement.
Another argument against a Comic Lease Agreement would be costs. Detractors would say that attorneys cost enough, without putting an artist into the equation as well, when you are drawing up a Comic Lease Agreement. However, a Comic Lease Agreement doesn’t have to be as expensive as you think. A long “text-based” negotiation process can cost thousands of rands.
With a Comic Lease Agreement there are useful online tools, e.g. there are a number of different online apps that will help you to generate illustrations and panels at the click of a button. The time-consuming aspect would be to find out which nuances of the lease agreement you can safely leave out, and what areas you need to focus on. But once you understand what is central to the relationship between the landlord and the tenant, you can generate the panels easily and at very little cost.
For decades, words have been lawyers’ tools of trade. Today, we should no longer let tradition force us to think inside the “text-only” box. Apart from words, there are other means available. The real challenge has become the understandability of the content of the lease agreement. It is clear that the general public does not understand legalese, and that communication is becoming more visual and rapid.
There is a growing literature about style and typography for legal documents and contracts, yet the use of visual and non-textual elements has so far been omitted for the most part. One can therefore only conclude that the time is ripe for the introduction of the Comic Lease Agreement, as the next innovation in the property sector in South Africa.