Are Small Print Terms in Standard Form Contracts Illegal?

INTRODUCTION.

In modern commerce, standard form contracts have become unavoidable. From mobile app subscriptions to bank services and online purchases, users are constantly required to “accept terms and conditions” often written in very small print or long, dense pages that few people actually read.

This raises a recurring legal question: does the fact that terms are written in small print make them illegal?

The short answer is no. But the real legal position is more nuanced.
1. Small Print Does Not Automatically Make a Term Illegal
There is no general rule in contract law, whether in Nigeria or common law jurisdictions, that invalidates a clause simply because it is written in small font.
The law is not concerned with typography. It is concerned with:
whether the term was properly incorporated into the contract, and
whether the other party had reasonable notice and opportunity to understand it.

So, even very small print can be legally binding if properly incorporated.

2. The Real Legal Issue: Notice and Incorporation

The central question courts ask is:
Was the term fairly brought to the attention of the other party before they agreed?
In standard form contracts, acceptance often happens by clicking “I agree” or signing without negotiation. This makes notice extremely important.
If a term is buried in fine print or presented in a way that makes it unlikely a reasonable person would see it, a court may find:
• Lack of proper incorporation, or
• Lack of reasonable notice.
This does not mean the term is “illegal,” but it may mean it is unenforceable.
3. Onerous Terms Require Special Attention
Courts apply a stricter standard where the clause is unusual, harsh, or unexpected (for example):
• Exclusion of liability clauses
• Penalty clauses
• Automatic renewal clauses
• Arbitration clauses restricting court access
The principle is:
The more unusual or burdensome the term, the more clearly it must be brought to the other party’s attention.

So if such a clause is hidden in tiny print without emphasis, a court may refuse to enforce it.

4. Unfair Terms and Consumer Protection (FCCPA)
In Nigeria, the Federal Competition and Consumer Protection Act (FCCPA) strengthens protection against unfair contract terms in consumer transactions.
Under consumer protection principles:
• Terms must not be misleading or deceptive
• Businesses must act fairly and transparently
• Hidden or obscure terms may be challenged as unfair
So while small print alone is not illegal, it can contribute to a finding that a term is unfair or unconscionable, especially where there is imbalance of bargaining power.

5. The Key Principle: Consent Must Be Real, Not Theoretical
Contract law assumes consent. But in standard form contracts, courts increasingly examine whether consent is:
• Informed, or
• Merely technical (e.g., clicking “I agree” without knowledge)
Small print becomes problematic when it undermines real informed consent.

Conclusion
Small print in standard form contracts does not automatically make terms illegal. The law does not punish font size. However, it becomes legally significant where it affects:
• Reasonable notice
• Fairness
• Transparency
• Genuine consent
In essence, the issue is not how small the words are, but whether the party was fairly and clearly made aware of what they were agreeing to.