Picture-Perfect or Potentially Perilous? Assessing the Validity of ‘Comic Contracts’

This article considers whether ‘comic contracts’, which incorporate aspects of visualisation, are legally valid under Anglo-Australian contract law. Comic contracting has been put forward as one method which can address issues associated with traditional text-based contracting, including contractor apathy and illiteracy. Use cases across a variety of commercial and other contexts are arising in Australia and around the world. The literature has to date focussed upon the advantages and disadvantages of this novel method, however the broader question of whether comic contracts are legally valid in light of their potential uncertainties has gone unanswered. This article ultimately makes the case for validity and suggests there is ample authority supporting the notion that a comic contract can satisfy the legal test of contractual certainty.


Introduction
In 2010, British video game retailer Gamestation carried out what is now a famous April Fools' Day prank on its customers. The company covertly inserted a bizarre clause into its online terms of service which read as follows (Fox News 2010): By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act.
The clause went on to say that users who either did not believe they had an immortal soul, had already given it to another party, or simply wished to retain it and deny Gamestation's claim over it, could click the subsequent link to 'nullify the subclause and proceed with the transaction'. An incredible 88 percent of users failed to notice the clause and did not opt out; the remainder that did received a £5 voucher (Brownlee 2010). Though done in jest, the prank proved to be an insightful experiment which highlighted the disturbing tendency for people to avoid reading the contract terms they agree to. Behavioural economists refer to this as 'rational apathy'; the costs (in time, money and effort) of gathering information to improve decision-making are generally perceived to outweigh the benefits of doing so, meaning people generally do not bother (Faure and Luth 2010: 340). Berger-Walliser, Bird and Haapio (2011: 56) note that 'the problem is seldom an actual inability to understand [contract terms], but instead a reluctance to make the effort'. Similar experiments in which users signing up for free public Wi-Fi access have unknowingly agreed to undertake public janitorial services (The Guardian 2017) or to give away their eldest child (The Guardian 2014) have consistently confirmed that no one likes reading contracts.
With little doubt, one of the principal reasons people do not read the terms of their agreements is because of the complex language they use. Law is a 'game of words' (Bhatia 2010: 31), and those words have been crafted since the High Middle Ages by judges, politicians and through the efforts of lawyers and industry. 1 Commercial lawyers endeavour to exhaustively spell out the rights and obligations of the parties using customary legal vernacular, to accommodate all possible contingencies and risks, and to eliminate any potential ambiguities. Consequently, legal 1 For a useful account of the historical development of the English common law system and its effect upon the language of the law, see Tiersma 2000. language of the kind commonly encountered in even the most basic of contracts is barely comprehensible to the layperson, making the thought of reading pages of it seem both agonising and futile. Words may well be 'the lawyer's tools of trade' (Denning 1979: 5), as Lord Denning once famously wrote, but they are a seemingly ineffective tool at communicating critically important information regarding parties' contractual commitments.
Even where the parties have properly considered the terms of their bargains, they can differ as to the meaning and grammatical construction of the words used. Many commercial lawyers will be familiar with the famous dispute between Canadian tel-

Comics as a Visual and Linguistic Art Form
What is intriguing about this growing body of legal literature addressing comic contracting is that it scarcely examines comics as a visual and linguistic art form. It often tends to evaluate the overall utility of applying comic art to commercial contracts to decrease complexity and increase comprehension with no regard to the functions the comic art itself is actually performing. The presumption appears to be that the comic form is appropriate to convey an inherently complex legal message and is perhaps more effective than words alone at doing so. As will be discussed shortly, many empirical assessments of comic contracts appear to support this view, but there is little (if any) critical analysis of how the comic form accomplishes this aim.
There is also a great deal of disagreement as to what is meant by ' comics' in the context of comic contracting. As mentioned earlier, in current legal literature, a ' comic contract' has been vaguely defined as any commercial agreement either substantially or wholly replacing text with various forms of visuals ranging from pictures and icons to diagrams and flowcharts. The intentional and considerable inclusion of any such visuals appears to qualify an orthodox contract as a ' comic contract'. In this context, the expression ' comic contract' appears to allude to the visual form as com- The employee is here invited to read the panels from left to right and, despite two panels appearing in the same column and tier, they are naturally oriented so that In theory, then, the comic form might be more capable of engaging the reader and facilitating processing and comprehension of the information threaded into the sequential narrative. But does the data corroborate the suspicion?   Again, whether or not comic contracting is beneficial as a practice is not the focus of this article. Instead, it attempts to answer the arguably more important question of whether comic contracts are legally enforceable at all. In this regard, validity is generally assumed, however doubt arises from the fact comic contracts are predominantly visual rather than textual, meaning it is inherently uncertain whether the relevant rules and principles as to contractual certainty will be satisfied. Those rules were for centuries fashioned upon the orthodox notion of the text-based contract. If a party disputes a comic contract's validity, the courts will be tasked with determining whether the elements of formation are present. If sufficient certainty is lacking, and remedial measures such as severance cannot assist, the contract will fail. The forthcoming analysis predicts how the courts might at a general level -one which does not account for the individual characteristics and qualities of a particular contract -appraise the legal ' certainty' of comic contracts.

The Certainty Requirement in Contract Law
Making a contract, much like making a cake, merely depends upon the right types and quantities of ingredients being present. Unlike cake, however, it is sometimes unclear whether a contract has been successfully created. The position under Anglo-Australian law is that the following four elements must be present in order for a contract to be validly created: (1) agreement, comprised of offer and acceptance; (2) consideration; (3) intention to create legal relations; and (4) certainty of terms (Giancaspro and Langos 2016: ch 2). Legal certainty requires that the terms (especially the essential terms) be comprehensible and clear, or at least capable of being attributed with meaning. If the terms cannot be understood at all, and the obligations of the parties discerned with accuracy, the contract will be void. 4 The courts do not endorse a narrow or pedantic approach when interpreting contracts and assessing if they reach the requisite threshold of legal certainty.
Indeed, they will do all possible to attribute meaning to the terms used by the parties and will cease only if the task becomes impossible. One of the leading 4 If the offending terms can be severed and the contract can capably function without them, the con- [A] contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts … decide … is its proper construction …. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. … So long as the language employed by the parties … is not 'so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention', the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved. would logically apply to pictures as it would to words. New interpretative principles specific to comic art could theoretically be developed by the courts, but these principles would still need to operate within the broader framework of existing general rules that govern the interpretation of contracts. This is particularly so for the lower courts, which would likely be first to hear a dispute concerning a comic contract and which would simultaneously be bound by the doctrine of precedent to follow the rulings of the courts above them.

Evaluating the Validity of Comic Contracts
Against the backdrop of the basic principles of contractual interpretation, the archetypal comic contract can now be assessed. Again, to conclusively determine the legal certainty of a given comic contract, it would need to be evaluated on its merits. It is important here to distinguish a comic contract's content from its form. Each contract will differ in terms of the types and quantities of visuals used, so it is clearly impossible to comment on the validity of comic contracts as a class by reference to substance or content alone. Instead, what follows is an analysis of the validity of comic contracts as a class by reference to their form, and how this class might generally be treated by the courts. 9 The term 'form' here is used in the comic art sense to describe the medium or vessel in which the contract's content is held (McCloud 1993: 5-6).
Commercial contracts, like comics, utilise different layouts and styles. Just as we can distinguish graphic novels from comic books, so too can we distinguish a land sale agreement from a contract of guarantee. The content of each class of comics or contracts will vary greatly, but the overall form will generally be similar. What follows is an evaluation of comic contracts as a form of contractual agreement, incorporating visual elements as they have been used in commerce.
To date, there is no known judicial statement speaking directly to the overall validity of comic contracts as a class. This follows from the fact no comic contract has yet been the subject of litigation. There have, however, been extrajudicial remarks.
Speaking at the 'Comic and Creative Contracts Conference' hosted by the University of Western Australia in 2017, former High Court Chief Justice Robert French stated that there was 'no reason in principle why pictorial contracts explained orally or supplemented textually or contextually could not be enforceable in the same way as any other contract' (Marin-Guzman 2018). Some commentators even appear to 9 The law is not unfamiliar with doing this. For example, when determining if terms have been correctly incorporated through signature upon a document, regard will be had to the form of the document.
If what was signed could not reasonably be regarded as contractual in nature, the 'signature rule' in

L'Estrange v Graucob [1934] 2 KB 394 will not apply: D J Hill & Co Pty Ltd v Walter H Wright Pty Ltd
[1971] VR 749. The 'signature rule' provides that a person who signs a contractual document will be bound by the terms expressed in the document, irrespective of whether or not they have read and understood them.  (Figure 3), and another of a businessman doing the same (Figure 4). The clear message is that the ostrich-like tactic of pretending damaging authorities do not exist is an unwise advocacy tactic.  Aintree depicting the height of the piling as AHD 7.60, 100 millimetres lower than the required height. The sketches were accepted, and Ground commenced and completed construction to the specification it stated in its sketches. Aintree later paid only a portion of the contract price, arguing Ground's work was defective and not to specification. Ground sued for the balance owed.
The Supreme Court of Appeal for Western Australia found in favour of Ground.
The court recognised the unorthodox tender process that had occurred whereby the tenderer was selected pending its provision of more detailed work plans. Aintree's unequivocal acceptance of Ground's sketches in response to its request for further detailed plans satisfied the condition that qualified Ground's selection. The court regarded there as being an implied term that upon providing the detailed plans, and those plans being accepted, Ground would complete the work in accordance with the sketches, which included the lower piling height. Most importantly, the court observed at Paragraph 52 of its judgment that, having been accepted in this manner, 'the sketches acquired the status of a contractual document'. It is clear from this statement that sketches, which are fundamentally technical drawings or pictures (Schank Smith 2008;Liebing 1999), can themselves be ' contracts'. By logical extension, a series of intelligible visuals threaded together to reflect the terms of a commercial agreement must be capable of being contractual.
Of course, such a simplistic comparison overlooks the inherent (and important) differences between sequential art such as comics with more focussed, technical visual forms such as architectural drawings. The former requires the reader to reconstruct the linear sequence of events from a series of arranged panels. The use of tiers and gutters helps shape the narrative for the reader, and the characters, events and dialogue provide the basis for the story. Technical drawings, on the other hand, do 13 AHD is a standard measurement to determine a particular height above sea level. Moreover, the court's remark in Aintree Holdings must be read in context. The architectural sketches were deemed to be contractual in nature against the backdrop of the facts and circumstances relevant to the dispute. Ground had already submitted a tender to Aintree, which involved a minimal amount of text elaborating on its detail. The three sketches sent afterwards were not considered in isolation but rather in the frame of the parties' earlier dealings. The court considered that the sketches should be regarded as contractual in order to make the parties' agreement commercially workable. They were regarded as part of the overall 'package' which comprised the legal contract in this case. The point here is that a drawing, or indeed any visual, may well be legally recognised as contractual in nature, but such a finding will be made with reference to the specific facts before the court.
Notwithstanding some lingering uncertainties, on the basis of practice, commentary, judicial authority, and logic, there seems to be support for the idea that comic contracts incorporating visuals can be legally enforceable. In line with the leading case law on contractual interpretation, provided the courts can attribute meaning to the visuals used (in the same way they would with words alone) and discern the parties' intentions, the contract should be regarded as valid and binding.
The only obstacles to judicial recognition of the validity of comic contracts appear to be rooted in cultural resistance or misconception of the interpretative process. contracts can be interpreted with objective precision is therefore questionable given their meaning will very much depend not only upon how the contract is depicted but also how the imagery is subjectively construed. This also has ramifications for the integration of comic art into contract law. As mentioned earlier, contracts are interpreted objectively. The courts seek to establish the common intention of the parties by reference to what a reasonable person would have understood the terms of the agreement to mean. The parties' subjective interpretations are excluded from this assessment, whereas they are critical to the extraction of meaning from comic art. Accordingly, the concept of comic contracting requires a fusion of seemingly incompatible ideologies.
Moreover, construction of a sequential narrative in a comic contract is likely to be difficult. Unlike traditional comic narratives, a comic contract will typically consist of multiple categories of terms which, though broadly related, concern different (and sometimes entirely disconnected) aspects of the parties' legal relationship. As with all comic forms, judges would need to attempt to construct the comic contract's narrative to properly contextualise its terms and give it meaning. This will be close to impossible if no such narrative exists. Scholars such as Groensteen argue that visual elements throughout a comic narrative -or, in this case, a comic contract -should speak to one another as easily as those either side of a gutter on the same page (Groensteen, 2007: viii-ix, 6, 21-23). Creating this kind of coherence and ubiquity throughout a commercial contract, even one imbued with visual elements, however, is a daunting task.

Conclusion
It is a well-known fact that people do not read contracts, and even if they do read them, they scarcely understand them. Comic contracting has been touted as one potential solution, encouraging the use of visualisation in the generation of commercial agreements to make them more inviting, comprehensible and efficient. This method has many pros and cons, discussed extensively in the small body of litera- ture. Surprisingly, what has not been considered in the literature is whether such contracts are legally valid. The benefits that comic contracts offer are moot if such agreements will not stand up in a court of law. This article has examined some of the commentary and authorities speaking to this issue and reasoned that comic contracts, though perhaps prone to difficulty in construction, are capable of satisfying the threshold of legal certainty under Anglo-Australian contract law. However, the interpretative role of the courts will be made especially difficult in light of the capacity for comic art to carry meanings exposed only through subjective construction of its elements. It will, of course, take a judicial decision to conclusively answer the question, but there seems no logical reason why comic contracts cannot pass muster.
The courts need only resist the urge to judge a contract by its cover.

Competing Interests
The author has no competing interests to declare.

Editorial Note
This article belongs to the Graphic Justice collection, edited by Thomas Giddens and Ernesto Priego with support from the journal's editorial team. Our gratitude to our pool of peer reviewers. Though it is the journal's policy to limit footnotes and endnotes to a minimum, editorial exceptions have been made for domain-specific articles such as this one. Every effort has been made to trace copyright holders and to obtain their permission for the use of copyright material under educational fair use/ dealing for the purpose and criticism and review and full attribution and copyright information has been provided in the captions.