Academic lawyer cautions on use of overly formal student contracts

Universities advised to retain flexibility to avoid restrictions of legal 'straitjacket'. John Gill reports

April 24, 2008

The danger of creating a legal "straitjacket" through overly formal student contracts has been spelt out by a leading university lawyer.

Nine universities are using student contracts in the UK and another 17 are considering introducing them.

The format and the legal complexity of the contracts varies, and Ewan McKendrick, professor of English private law at the University of Oxford, said that universities were well advised to retain a degree of flexibility. Contracts, he said, could be used to formalise the relationship between university and student, to clarify the expectations of both parties and to defeat false expectations, shielding the university from liability for non-performance.

Joking that lawyers were "taking over" at Oxford, Professor McKendrick said that a knowledge of law was an increasingly important part of university administration.

"We can debate whether that is a good thing or not, but it is a reality that we all face," he said.

He categorised the contracts into two groups: "commercial, arm's-length" contracts with, for example, exclusion of liability and similar clauses, and less formal agreements.

The professor, who said that most contracts currently in use were "somewhere between the two", warned that lawyers were often predisposed to plump for the more conservative option.

"Some of my academic colleagues defer to legal advice in a way that I would not expect," he said.

"If you ask lawyers, they will give you the advice to protect your back ... There is a risk that if you go to a lawyer and say 'I want a contract that will protect us', what you'll get is a standard commercial contract."

One area where contracts may be useful is in resolving disputes, and Professor McKendrick said that student attitudes to litigation could be key in shaping the future of the document they are asked to sign.

"If you see disputes going to the High Court, there is much greater force to the argument that they should be treated like a commercial contract," he told delegates at a conference hosted by the Office of the Independent Adjudicator last week.

"If you see the dispute resolution mechanism being ... the OIA, there is rather less need for the armoury of legal terms. The trouble is that we don't know which way students are going to go."

Another issue to consider, he said, was that of student intellectual property rights, with universities increasingly becoming involved with spin-off companies. "It is possible that students will develop intellectual property or make a significant contribution to a discovery, and if they assert their rights to it, what is our position?" he asked.

Baroness Deech, the independent adjudicator, raised her own concerns about how enforceable student contracts would prove to be.

"I think some of the terms would come under the Unfair Contract Terms Act and a court would strike them out, especially since the students signing them may well be 17 or 18 (and may be considered) too young to make such a contract. So I'm not sure a university can protect itself, if that's what it is seeking to do," she said.

john.gill@tsleducation.com.

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