Microblog Memes

Well, what about the contract? Traditionally, contracts have three main elements: Offer, acceptance, and consideration. That is, one party offers something, the counter-party accepts the offer, and there's an exchange of something of value between them. It ought to be obvious to even the most casual observer that there's a lot to unpack about acceptance. Clearly, the party accepting the offer should understand the offer in order for the contract to be valid.

If I offer the neighborhood cats treats in exchange for not digging up my plants, and they accept, that doesn't give me a cause of action to sue them (or their owners) for breach of contact when they still dig up my plants. A cat cannot lacks the understanding of the offer, and cannot accept, and therefore no contact exists.

Similarly, if a human lacks the mental capacity to understand an offer—say, a person deep in dementia agrees to a reverse mortgage without knowledge of their legal guardian—a court can rule that no contract existed, because the person did not understand the offer.

Health insurance contracts are anything but clear. In fact, the Byzantine details surpass the ability of most people to understand. (Part of my job in the past was getting paid to read and interpret health benefit statements for other people. Quick— what's ERISA, and what are the legal implications of health insurance vs. health benefit plans?) Is it really a valid contract, if people can't even begin to understand the offer?

One might say that people should get an attorney to look it over. Yeah, and then what? Counter-offer? We don't have much leverage to do so, because the terms of all of the offers are bad, and opting out of health coverage entirely is not a good option. (Even the healthiest person could get hit by a car and be financially ruined for life.)

That's the source of the anger. We can understand how insurance is supposed to work: Pay premiums to mitigate risk. Instead, these companies hide all manner of gotchas in contract terms we have no hope of understanding. Traditionally, that would not be a valid contract, but the legal system seems to exist to serve the powerful, so it enforces them anyway. (Even then, the insurance companies try to avoid fulfilling what seem like their clear obligations because sick people lack the wherewithal to fight them.)