TERMS OF ART AND ‘LEGALESE’ IN LEGAL ENGLISH
Study Unit TERMS OF ART AND ‘LEGALESE’ IN LEGAL ENGLISH Catherine Mason has been a teacher of legal English at Cambridge Law Studio for more than twenty years. She believes that the language she is obliged to teach is unnecessarily complicated, especially the English used in cross-border contracts, where many of the lawyers involved in the transaction are probably dealing with English as a foreign language. She explains some of her thoughts on the English of contracts below.
(A) THE TWO CATEGORIES OF WORDS YOU WILL FIND IN A CONTRACT When studying the language of the law, international lawyers are often advised to divide the vocabulary of contracts into two categories: (i) ‘terms of art’, which means certain technical, legal words that are seen as being impossible to replace and (ii) ‘legalese’, which means the non- legal but problematic English words that lawyers use instead of choosing something more easily understandable. For example, ‘indemnify’ is a term of art, because lawyers say it has a decided, legal meaning. On the other hand, the truly awful ‘notwithstanding’ is legalese, because the lawyer who decided to use it could have just said ‘despite’. Happily, some lawyers want to abandon legalese and replace it with ‘plain English’. There is a genuine need for this. Texas District Judge Lynn Hughes has said, “The common language of the law is not the product of necessity, precedent, convention, or economy, but it is the product of sloth, confusion, hurry, cowardice, ignorance, neglect, and cultural poverty.”
Judge Hughes is in Texas and I am in Cambridge (the one in England), and although I have never met him and certainly do not share some of the views he has expressed, I am a big fan of his comments on the language of the law. As an illustration of what he means, look at the extract below, which is from a contract for the sale of a house in Florida.
“WHEREAS, Seller is desirous of selling the Property as hereinafter defined in Paragraph 2 hereof and Purchaser is desirous of purchasing the Property on the terms and hereinafter set forth … .”
The really annoying thing is, there are no ‘terms of art’ here that the lawyer who drafted it absolutely needed to use. This is pure legalese when it is completely unnecessary. But proponents of traditional drafting defend the use of legalese and seem determined to continue using it. This means that lawyers working on cross-border contracts are likely to see agreements in a variety of styles, ranging from very natural and modern plain English, through to agreements for the sale of things such as shares, land, or food that look as if they were possibly drafted by Shakespeare when he was having a bad day.
(B) ARE TERMS OF ART NECESSARY? My personal opinion is that it is not just legalese that needs to stop; I believe that many terms of art, words with ‘judicially defined meanings’ should also be discarded, because they are huge barriers to good communication. Some British and American lawyers seem to enjoy long, online debates on what different terms of art mean. An example of this is the term ‘hold harmless’. In my own research, I found comments such as: “There are two schools of thought as to what this means.” Then, why not just spell out what you want to say? Why create confusion and ambiguity?
In response to this suggestion, some lawyers will argue that the word is useful shorthand, that it would take several sentences to explain it, and for that reason it should stay. But the ‘shorthand’ argument did not save the use of Latin in English contracts, and we are all now told not to use it because it makes contracts more difficult to understand. So, why should the ‘shorthand’ argument be used in defence of incomprehensible English? If removing terms of art is a level of mutiny that makes lawyers too nervous, how about using the word but providing an explanation of it in cross-border contracts? The agreement would still be ‘watertight’, if that is the drafter’s main concern in insisting on using the word, but it would be readable and understandable to international colleagues, perhaps saving them a great deal of anxiety and time. It seems the least that we can do, given that the world has been gracious enough to learn English.
Read A and B opposite and complete the following sentences with a word or phrase from the box below.
(a) cross-border contract (c) legalese (e) spell out (b) term of art (d) school of thought (f) watertight contract 1. A (1) ….. is an agreement that has been drafted so carefully that it has no faults, in particular, it has no small mistakes (loopholes) that the other party could benefit from. 2. A (2) ….. is a set of opinions or ideas that a group of people share about a particular, debateable, subject. 3. To (3) ….. the meaning of something is to state what you mean very clearly so that there can be no doubt about what you are saying. 4. A (4) ….. is a binding agreement between businesses that are located in different jurisdictions. 5. A (5) ….. is a word used in a contract that has been interpreted in a certain way by a court and therefore all lawyers in that jurisdiction supposedly know what it means. 6. (6) ….. is the unnecessarily complicated language that lawyers use in sentences around terms of art when they could use more easily understandable words without changing the meaning of the document.
DISCUSSION POINTS • The vocabulary of legal English can be divided into ‘terms of art’ and ‘legalese’. Can you think of some examples of terms of art and legalese as lawyers use them in legal documents in your jurisdiction? • Here are some of the rules on how to avoid legalese that appear in contract drafting style guides for the employees of some London law firms. Which rules do you approve of and which do you disagree with?
1. Never use a complicated word or phrase to appear ‘more educated’ or ‘more sophisticated’.
For example, don’t use the word ‘furnish’, just say ‘provide’, because it is easier. 2. Remove the legal Latin from modern contracts. 3. Delete any words in the contract that sound like ancient English. For example, don’t use words like ‘heretofore’, ‘hereby’ or ‘foregoing’. Use modern words. 4. Do not use long lists of synonyms in one sentence that mean the same thing. For example, ‘If either party to this contract wishes to alter, amend, vary, or modify any provision of this Agreement…’ . If you only need one word, use one word, not four. 5. Keep your sentences short so that the reader has not forgotten the beginning by the time he or she reaches the end. 6. Use the active and not the passive. For example, say ‘The Buyer must pay for the Goods on or before 9 February’ and not, ‘The Goods must be paid for by the Buyer on or before 9 February’.
If you agree with four or more of these rules, you are probably a supporter of plain English drafting and not a proponent of traditional drafting.
Speaking & Writing for this topic
Two short tasks scored against TOEFL rubrics. The prompt is generated for this topic — use the vocabulary you have just studied.