Legal English Newsletter V

Here is the fifth edition of my Legal English Newsletter, which contains tips on legal English usage and appears on a (roughly) quarterly basis. 

Drafting tip: consistency

Achieving consistency in drafting is simple in principle but often proves difficult to achieve in practice.

Ordinary sense

The basic rule is that words should be used in their ordinary sense. This sounds simple enough but is complicated by three issues:

(1) Many words have more than one ordinary meaning.

Consider, for instance: there is a car following us as against please refer to the following paragraph; or one day I may visit Alaska as against the contractor may use the facilities provided by the Company during weekdays.

While we are aware that following and may have different meanings in these two sentences, the context provided by the rest of the sentence tells us in what sense these words are used. It is possible to imagine circumstances in which this is not the case: for instance, what does look at the following car mean? Therefore, the key point is that if you use words that have several meanings, you must take extra care to formulate your sentence in such a way as to avoid ambiguity.

(2) A number of words have one meaning in ordinary language and another meaning in legal language. Examples include consideration, vehicle, tender, conveyance, and redemption. The solution is as per (1) above.

(3) A number of words used commonly in legal situations have synonyms, many of which can be used interchangeably in all or most of the same situations. Consider for instance landlord/lessor, tenant/lessee, seller/vendor, buyer/purchaser, clause/article, undertake/promise, breach/violate.

In some cases, there may be clear reasons for choosing one of these words instead of another. For instance, landlord and tenant are used in relation only to the lease of real estate, while lessor and lessee may also be used in relation to the lease of other types of property. In other cases, established legal custom may indicate a preference. For instance, EU directives contain articles, while simple commercial contracts tend to contain clauses. In all circumstances, one must decide from the outset which word to use and then stick to it throughout.

Defined terms

It may sometimes be necessary to define a term used repeatedly in a text in order (1) to achieve precision of meaning, and (2) to avoid problems of interpretation. In practice, defined terms are also often used in order to avoid the tediousness of having to retype lengthy names: for instance, The Egregious Pan-Oceanic Shellfish Processing and Transportation Company of M?nchengladbach (hereinafter the 'Company').

When using a defined term:

(1) Check that the definition given for the term is clear and unambiguous.

(2) Ensure that the way in which the defined term is actually used in the text does not diverge from the definition given to it.

(3) In particular, ensure that the definition is just that and does not introduce a rule or condition. Here is an example of a definition that has gone wrong:

‘Sales Report’ means a report sent by the Distributor to the Company at the end of each quarter indicating the level of sales of the Products achieved during that quarter, unless the Company exceptionally requires such reports to be made on a monthly basis in which case it shall notify the Distributor 14 days in advance.

The problem here is that the definition turns into a rule after ‘quarter’. The second part of the sentence should be detached from the definition and reformulated as a separate contractual term.

(4) If you’re only going to use the defined term once don’t bother with it. If you’re going to use it only within a single paragraph, article or clause only define it in that paragraph, article or clause. If you’re going to use it throughout the text, define it in a specific clause near the beginning of the text.

(5) Don’t overuse defined terms – this makes the document more difficult to amend and increases the likelihood that mistakes will be made.

Language tip: uncountable nouns

What are they?

Some nouns in English are uncountable. In other words, they are not used with the indefinite articles a or an and do not have plural forms. For example, the word information, as in the phrase I need some information, cannot be expressed in the singular as ‘an information’ or in the plural as ‘some informations’.

Therefore, when faced with an uncountable noun, you have three choices:

(1) Use it in its usual form. For example, I have received some information.

(2) If it is important to specify a particular amount of an uncountable noun, join the noun to a word that is itself countable. For example, the word piece could be used with information to create a plural: I have received five pieces of information.

(3) Use a countable synonym instead. For example, if the information has come in the form of reports (which are countable), you could write, I have received five reports.

Uncountable nouns are often abstract in nature – as in words like advice, remuneration, equipment and knowledge. However, this is not always the case, as a number of very commonplace and concrete words such as butter, rice, sugar and milk are also uncountable.

Uncountable or not?

Certain English nouns are countable when used in one sense but uncountable when used in another sense. Several of these appear commonly in legal usage, and include the following words.

Compensation is countable when used in a non-financial sense. For example, My job is not well paid but has certain compensations, such as the opportunity to travel. However, it is uncountable when used in a purely financial or legal sense. For example, The company was obliged to pay compensation to a number of its former clients.

Liability is countable when used in the sense of financial liabilities. For example, The liabilities listed on the balance sheet include accounts payable, deferred tax and promissory notes. In this financial sense, it is often used to mean the opposite of assets. However, it is uncountable when used to refer to legal responsibility in civil law. For example, The company admits liability for the breach, but disputes the amount claimed.

Paper is countable when used in the sense of a research paper or thesis. For example, Professor Virtanen has published over thirty papers in her field of specialisation. However, it is uncountable when used to refer to the paper itself as opposed to the content of what is written on it. For example, We ordered some more paper for the printers today.

Did you know?

In his indispensable guide to the use of euphemisms, How Not to Say What You Mean, R W Holder defines the well-known expression ‘with respect’ as ‘you are wrong’.

Mr Holder explains that this term is ‘used in polite discussion and jargon of the courts where an advocate wishes to contradict a judge without prejudicing his case’, and quotes an English judge on the subject:

There is high authority for the view that [with respect] means ‘You are wrong’… just as ‘with great respect’ means ‘you are utterly wrong’ and ‘with the utmost respect’ equals ‘send for the men in white coats’. (Mr Justice Staughton, quoted in the Daily Telegraph, February 1987)

Interestingly, Mr Holder omits to explain the meaning of ‘the men in white coats’. This expression is commonly used humorously in English to mean employees of a psychiatric hospital, who will ‘take you away’ if you start to exhibit signs of mental disturbance.

News

I am holding a two-day seminar on legal English in Helsinki on 14 and 15 April this year. Further details are available on my website at https://www.ruperthaigh.com/index.php?id=14. Registrations can be emailed to me at [email protected].