Column: How did God make it into millions of consumer contracts?
Lee Brubaker believes in a higher power. Call that power “God,” call it “the universe,” call it what you will. She’s a believer.
“I believe there’s something there,” the West Los Angeles anger-management trainer told me. “What that something is, I do not know.”
What she does know, however, is there’s no place for a Supreme Being in consumer contracts. Which is why it’s puzzling, to say the least, that “acts of God” is cited so frequently as an excuse for not meeting corporate obligations.
“That’s got to be the best way in the world for a business to get out of a commitment,” Brubaker said.
She raised these points after I wrote recently about extended warranties for products and services.
I took a close look at the one-year extended warranty offered by the eyewear chain LensCrafters, which excludes “damage from abuse,” as well as damage from “fire, collision, vandalism, theft, etc.”
It also exempts damage resulting from “acts of God,” which in a literal sense — that is, the sense of an all-knowing, all-seeing Creator of all things — would appear to include, well, everything.
And that’s not the sort of thing most people would expect to find in a legal document, particularly in the form of a get-out-of-jail-free card that businesses can use to decline a consumer’s claim.
So how did “acts of God” provisions become so commonplace in U.S. law?
“That’s a good question,” responded Andrew Schwartz, a law professor at the University of Colorado Boulder. “From a certain perspective, you could say that everything that happens is an act of God.”
Like every other expert in contract law I spoke with, Schwartz said “acts of God” provisions have their roots in what was once viewed as inexplicable — floods, fires, natural disasters.
That interpretation has since evolved into a legal shorthand for unanticipated events beyond human control.
“Once a certain phrase has come to be well-understood, there’s a reluctance to use a different phrase,” Schwartz said. “That seems to be the case here. We know what is meant by ‘acts of God.’”
Indeed, the Florida state Supreme Court ruled in 1944 that an act of God is “an act or occurrence so extraordinary and unprecedented that human foresight could not foresee or guard against it.”
That case involved a utility’s liability after a hurricane knocked out power to customers. “Acts of God” is now commonly used to describe unforeseen circumstances resulting from natural disasters.
Mark Gergen, a law professor at UC Berkeley, said this legal precedent dates back to at least 1581, when an English court ruled in the property-related case of Wolfe vs. Shelley. That case essentially found that the death of one party in a contract — an “act of God” — was sufficient to make the deal null and void.
It’s now understood, Gergen said, that “acts of God” needn’t be supernatural. “Lightning and piracy are both acts of God,” he said.
A related legal doctrine is what’s known as “force majeure,” which holds that a contract may not be enforceable in times of extreme circumstances.
“That means that if a clause seeks to excuse one from performing in case of ‘floods, earthquakes, fires or other acts of God,’ then ‘other acts of God’ will be interpreted as something similar to an earthquake, flood or fire, such as a landslide — not a change in oil prices, for example,” said Ariela Gross, a professor of law and history at USC.
An “acts of God” clause in a contract “does not, of course, literally relate to deities,” said Russell Korobkin, a law professor at UCLA. “It is shorthand for meaning that one party who has a performance obligation will be relieved of that obligation in the case of a natural disaster that makes it impossible or severely impractical to perform.”
I get that once a legal concept or precedent is established, it can be viewed as being set in stone.
But it seems archaic, to put it generously, for an all-powerful deity to be cited as part of a business contract, especially when “force majeure” is right there to do the legal heavy lifting.
Moreover, a growing segment of the U.S. population may be uncomfortable with a religious element being featured so prominently in business relationships.
A recent report from Pew Research Center found that 65% of American adults describe themselves as Christians, down 12 percentage points over the last decade. Meanwhile, those who describe their religious identity as atheist, agnostic or “nothing in particular” now represent 26% of the population, up from 17% in 2009.
“The term ‘act of God’ wrongly presumes that these events happen independently of human intervention and are all part of some deity’s master plan,” said Nick Fish, president of American Atheists, an advocacy group.
“Insurance policies, warranties and other terms of service should stick to the secular term ‘act of nature,’ which focuses on the phenomena, rather than the supernatural,” he said. “Otherwise, we risk reinforcing the false notion that we are powerless to change the world around us — and nothing could be further from the truth.”
Theologians I contacted said the faithful will see the hand of God at work regardless of what a contract might stipulate.
“I can see how most people today would think it odd,” Michael Horton, a professor at Westminster Seminary California, said of “acts of God” provisions. “Once upon a time, this would not have been considered strange.”
Ted Peters, a professor at the Graduate Theological Union in Berkeley, said that “because we feeble humans have no control in the face of divine action, nature resembles the absolute God of the Bible.”
“Theologians in the 21st century believe the true God acts in, with and under natural processes, especially ordinary natural processes such as evolution or bodily healing,” he said. “Theologians could not give a flying rip what insurance companies think.”
I have plenty of respect for custom and tradition. But it seems unnecessary at best, and bizarre at worst, for legally binding contracts to include dated references to acts of God.
“The legal definition of ‘acts of God’ long ago abandoned invocation of deities or the supernatural,” said Clifford Villa, an associate law professor at the University of New Mexico. “Today, the term of art means an unanticipated, grave natural disaster or other natural phenomenon.”
Let’s just say that instead.
God has enough on His plate as it is.