The Mississippi Supreme Court has long recognized that "the suggestion of illiteracy cannot prevail for the manifest reason that there cannot be two separate departments in the law of contracts, one for the educated and another for those who are not." For this reason, it is generally held that "a contracting party has a duty to read what he signs and will be charged with knowledge of what he signed even though he fails to read it. [The rule] does not change [simply because] one cannot read or has trouble reading." Consequently, the rule, with its sometimes seemingly harsh results, has presented problems for the judiciary of this State since it was first announced over one-hundred and eighty years ago. Indeed, as one court has questioned: "[h]ow can it be inexcusable negligence not to read, when one cannot read?"
When applied to illiterates, the rule seems to impart more injustice than justice upon first glance. The typical first reaction, then, is to want to ignore the rule and lessen the burden on the illiterate or increase the burden on the party contracting with the illiterate. This reaction, however, does not reflect the state of the law and cannot prevail. As the Mississippi Supreme Court opined:
[A]t first [this Court is] strongly inclined to [side with the illiterate party], believing that substantial justice had been done by the verdict, yet, as it is so manifestly in violation of the law . . . we have felt bound to [find against the illiterate party]. We have witnessed the great hardship produced by the application of the strict law . . . to the transactions of plain illiterate men in the country [who continue to operate] without any reference to the strict conditions imposed [upon them] by the [governing] law. . . But we cannot well graduate the system, and bring it in adaptation to the various degrees of intelligence and facilities in different parts of the country . . . perhaps we have more to dread, from untried innovations, than from unequal, but known and settled principles.
Such "untried innovations" would require "two separate departments in the law of contracts, one for the educated and another for those who are not." Indeed, it would require, as the quoted language infers, that separate departments in the law of contracts be adapted for all "the various degrees of intelligence and facilities in the different parts of the country."
Were such a system imposed, the courts would be relegated to enforcing contracts on a case-by-case basis. This, from a practical standpoint, would destroy the value of all contracts. Thus, for this reason, the law remains unchanged: "a contracting party has a duty to read what he signs and will be charged with knowledge of what he signed even though he fails to read it. [If a person] cannot read or has trouble reading [he] has a duty to find someone to read the contract to him. Failure to do so is negligence."
Recognizing both the necessity and seeming injustice in the rule, courts throughout the State of Mississippi, both state and federal, have recognized the rule and, in the same opinion, referenced other bodies of law which tend to circumvent it. By way of example, the inferior courts of Mississippi, as well as several district courts sitting in Mississippi, have been particularly keen to accept arguments based upon the doctrine of procedural unconscionability. Pursuant to this doctrine, a contract may be deemed unenforceable if there exists "a lack of knowledge, lack of voluntariness, inconspicuous print, . . . complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms."
The doctrine of procedural unconscionability has typically been applied to render contracts entered by illiterates unenforceable because the illiterate, inasmuch as he cannot read the contract, necessarily has a "lack of knowledge" of the terms of the contract. Based upon this line of reasoning, the inferior courts have, on several occasions, determined that illiteracy may render a contract unconscionable and, in turn, that such unconscionability renders the contract unenforceable. These decisions run rough-shot over the rule stated above. However, the Mississippi Supreme Court and other appellate courts sitting in Mississippi have recognized the disparity and refused to allow it, choosing instead to follow the general rule.
Despite the uniformity the appellate court decisions have generally maintained in this area of the law, "the [Mississippi Supreme Court] has suggested at times that a soliciting agent has a duty to read the questions on an application to potential customers." Indeed, in the contemplated situations the Court has allowed the "potential insured" to circumvent his own negligence in failing to read his application, despite having signed the same. Seemingly, such does damage to the rule stated above. However, this "duty," while it only applies in certain situations, applies regardless of whether the "potential customer" is literate. Thus, while it can said that the general rule stated above prevents a heightened duty from arising simply because one is illiterate, it cannot be said in all circumstances that the general rule stated above applies. Indeed, there are some situations in which the duties thrust upon an insurer are increased to the aid of the proposed insured.