ENOUGH WITH THE CAPS ALREADY!
Sure, most of us put them in our contracts. But do we really need ALL THOSE CAPITAL LETTERS FOR CLAUSES THAT ARE SUPPOSED TO BE CONSPICUOUS, LIKE DISCLAIMERS OF WARRANTY? The eminently sane Ken Adams suggests not:
Andrew says that some laws require that certain provisions be written in all capitals. Can anyone cite for me any such laws?
And no, the Uniform Commercial Code doesn’t count. Parts of the U.C.C. require that text be “conspicuous.” For example, section 2-316(2) states that a disclaimer of the implied warranty of merchantability must be conspicuous. But section 1-201(10) of the U.C.C. specifies that “language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color”; it doesn’t say anthing about all capitals.
And Amercian General Finance, Inc. v. Bassett, 285 F.3d 882 (9th Cir. 2002), debunked the notion that text needs to be in all caps to be conspicuous. I particularly like this sentence from that case: “Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.”
In the comments, Craig Tindall finds a law actually requiring all caps--and bold as well:
ARS 12-1366(A)(1) If a contract for the sale of a dwelling or an association’s community documents contain commercially reasonable alternative dispute resolution procedures. If the contract for the sale of a dwelling contains the procedures, the procedures shall conspicuously appear in the contract in bold and capital letters. If the contract for sale of a dwelling contains the procedures, a disclosure statement in at least twelve point font, bold and capital letters shall appear on the face of the contract and shall describe the location of the alternative dispute resolution procedures within the contract.
South Carolina improves upon this even more:
South Carolina requires all caps (underlined, no less; how’s that for readability?) for disclaimers in employee handbooks. S.C. Code Ann. § 41-1-110 states that “a disclaimer must be in underlined capital letters on the first page of the document.”
The BOTTOM LINE seems to be that "conspicuousness" does not require all caps, but all caps may nonetheless be required, even though they are less readable.
