Is There a “Duty to Read”?

Professor Charles L. Knapp at the University of California Hastings College of the Law has written a research paper that every Judge and fair contracts advocate should read.  He argues that we should stop using the term “Duty to Read”, as it is commonly expressed in U.S. jurisprudence, and he is right.  Nomenclature is important and he carefully parses why this “creature of contract law” should more accurately be called a Presumption of Knowing Assent or “PKA.”  He argues that we should:

• stop calling it a duty;
• stop calling it a conclusive presumption;
• not replicate the parol evidence rule (i.e. where the writing governs);
• not allow the PKA to be a shield for wrongdoing;
• not let the PKA preclude relief for mistake;
• not let the PKA preclude the application of other protective doctrines such as “reasonable expections” and “unsconsionability”; and, signficantly,
• not let the PKA preclude scrutiny of adhesion contracts.