Time for a Change: Let the layman understand Contracts

In witness whereof the parties hereunto have set their hands to these presents as a deed on the day month and year hereinbefore mentioned. 

(Total - 24 words)

It may seem like some text from a Shakespeare Play but these are just the last few lines from end of a normal legal Contract

And here is a plain language version of the same text:

Signed on (DATE) …………. 

(Total - 2 words)

It is not rocket science to ascertain which one a client would rather sign! The former kind of language only breeds suspicion and ambiguity. A client harbours frustration towards the lawyers for making things unnecessarily complex and then charging a high fee to explain something that could have been far more simply expressed in the first place.

A Contract is supposed to be solving a situation, however if you fill it up with unnecessary words, meaningless jargon and complex legalese, it becomes a problem in itself. It is high time jargon and clichés are eliminated and fresh simple language, which does not tire you to read, is introduced. As a Law student it was quite confusing to read the verbose dense judgments of esteemed Judges. It is a grueling task for every Law student to decipher and decode what the cumbersome judgment really means. I consoled myself that it was old English which had a heavy mix of Latin and there was nothing that could be done about it except break it up and try understand it bit by bit. Although Roman law was never adopted by England, but many concepts of reasoning based on the Roman legal tradition, has influenced the English legal system. However, other than the alien Latin phrases, lawyers and judges have been using arcane English which sounds arduous and frown-invoking to say the least.

So does it make sense to use this kind of befuddling language? Are words like “herein under”, “covenants”, “warrant”, and “force majeure”; and phrases like “notwithstanding anything to the contrary herein”, “subject to the foregoing”, “including but in no way limited to” or Latin terms like “bona vacantia”, “doli incapax” and “nundum pactum” really necessary for an Agreement to be enforceable? Is there some counterintuitive value in useless boilerplate language? Does a Contract really need 15-word string of synonyms; all-cap, italicized, bolded sentences that span multiple pages; awkward sentences containing numerous semicolons; and outdated grammar to be worthy of signature? In my opinion, the answer is a resounding No!

Imagine if potential business partners could sit down over a short lunch without their lawyers and read, truly understand, and feel comfortable signing a simply stated Contract. No mistrust lurking behind heavy legal language that each party thinks can entrap him over time.

That might seem a clipping from the realms of fantasy. However, as a representative of the British Legal Centre (BLC), which strives to educate people to use simple language to achieve the Contract’s objective, I believe it is indeed possible. Initially when I undertook a course (Contract Drafting) headed by Mr. Richard Brady (General Director BLC - UK) I was amazed at how complex issues could be stated and resolved so easily. We were taught to write and negotiate Agreements which would not just cut down on time and effort but would run more smoothly than their previous legalese-laden versions did. Plain-language Contracts are easier to execute and carry lesser dispute invoked by the burden of mistrust enveloped in heavy difficult to understand words and phrases. As Robert Eagleson, a scholar on the topic has aptly put it: ‘Plain language “lets the message come through with the greatest of ease.”’

Have you ever wondered what is the purpose and aim to be met by using legalese profusely in Contracts? Is it used to create loopholes or double meanings? Can it be to show off your legal prowess? Does it elicit some satisfaction that by using legal jargon you will cover all risks comprehensively? Or, to save time and effort use precedents and not bother with simplifying it? Is it to create an impression on your high-ups in order to sound erudite? Or you are just ignorant of any other way?

To a large extent this problem stems from the fact that many draftsmen use standard paragraphs of texts called precedents, in order to work faster and easier. There are only a few legal publishers which produce these, which means that the content of legal documents created by different people, using the same precedents, invariably seems similar. Seemingly using a precedent is much less risky, as it has been tried and tested in courts many times, therefore for an unskilled draftsman choice is simple - to opt for a template rather than attempting to write on his own which might seem daunting. Such precedents breed 'deskilling', as work gets passed on to unqualified trainees and then simply reviewed by a senior.

The disadvantages of using precedents also lie in standardisation. Although, the publishers update their precedents for the latest law, they change the language as little as possible so as not to remove the value in having been tested. Thus, long sentences, jargon, verbs in the passive tense, overly formal language, double negatives and unnecessary words stay in the draft. Additionally, standard wording is, by definition, for standard use. Less skilled and novice draftsmen are unlikely to depart, partly through lack of experience, and partly because any deviation from the standard increases the risk of making a mistake. If additions are made, the words used include legal jargon so as to match the addition with the rest of the document. 

I do concede that to save precious time sometimes templates come handy but I am talking about revising those templates to make them easier to understand filtering all redundant and difficult words and phrases. If a person can read the Contract without wincing and understanding it clearly you have achieved your objective.

In 1999, Lord Woolf re-wrote seven hundred years of jargon-filled court procedures contained in "The White Book", "The Green Book" and thousands of case judgements into one new book called "The Civil Procedure Rules". What was more significant than simplifying the procedures was that he wrote the book in plain simple English.

Despite a lack of progress in many areas of Lord Woolf's proposals, use of plain English has started to become more acceptable.

Today, the legal system is opening up to use a "purposive" approach, which means that greater consideration is given to the intended context rather than the meanings of individual words. Since courts can often use discretion when interpreting a legal document, there is no longer an advantage to using a word that previously had a narrowly defined meaning unless the word also sits within context of what the document aims to achieve. Judges no longer mark down a case because it was not written in ancient jargon.

There has also been a global drive to adopt plain language in law with the recommendations of law reform commissions being adopted. Now, for example, statute law in the USA, Canada, UK, Australia, New Zealand, the Republic of Ireland and South Africa is purposefully written in plain language. Campaigns are afoot in other jurisdictions such as India and Hong Kong. Even better is that the use of plain English has become a legal requirement in most developed countries in many areas of law, particularly that relating to consumers.

The change might be quite gradual, but it will eventually have a huge impact. We can write documents in plain English that will be held up in court based on the content and meaning, not based on how many times words such as “thereof” or “hereinbefore” are written.

For instance, someone with no experience of the law, will be able to understand five separated, ten-word sub-paragraphs. But if you put the same five sub-paragraphs without separation, in a single unbroken sentence with no punctuation and lots of legalese, the same words become gobbledy-gook. It is impossible to edit or to safely delete part of it. Using sub-paragraphs, and sub-sub paragraphs constantly removes this vice. Separation of ideas become apparent and understandable and you will be more confident that you can delete what you do not need, or sometimes add your own words.

So how a document is constructed, how it is punctuated, how words are beaded together and choice of simple clear language is basically what makes a great Contract. If written in plain simple English a Contract should be so easy to read as reading a newspaper. We at BLC teach exactly that!

Should jargon be removed completely?

Unfortunately, no! There are still many legal words and phrases we cannot do without. These have specific defined meanings, refined over many years. We cannot replace “trustee”, “lease”, “tenancy in common”, “indemnify” and a thousand others. But we should do our best to simplify the wording of our legal documents to as great a degree as possible.

I guess it is an evolving process and we have to be patient.

Complex contracting has been with us for hundreds of years. We cannot rush the process. As the saying goes, old habits are hard to break.

Best advice I got from my teacher at BLC, Mr. Richard Brady: ‘Get smart and learn as much as you can about the products or services that will be covered by the contract’. Try and learn from the people selling the product or service - and do it before you start drafting. When I was a junior associate in a telecom company, I must admit I was also drafting Contracts based on the templates provided. However, my real understanding came when I understood the workability and associated risks involved in that particular sector. As then through my better understanding I was able to draft better clauses which were made to fit the situation. 

Just because you have always seen a certain clause in a Contract does NOT mean that it has to be in yours. Make a summary of what exactly is required from the Contract and draft it in an easier manner which is simplified and succinct. Moreover, if you receive a Contract and you cannot understand bits of it then chances are that others cannot too. Change it and see the difference it will make – who does not like life becoming easier and simplified!

Happy Simple Drafting to all my colleagues!

Author is the official representative of British Legal Centre in Bahrain.

For all courses offered by British Legal Centre please visit their website:

British Legal Centre. 

If you want in person BLC legal training in Contract Drafting please contact the author @[email protected]