Legal English reflects the mixture of languages which has produced the English language generally. However, it owes a particular debt to French and Latin.
Following the Norman invasion of England in 1066, French became the official language of England, although most ordinary people still spoke English. For a period of nearly 300 years, French was the language of legal proceedings, with the result that many words in current legal use have their roots in this period. These include property, estate, chattel, lease, executor and tenant. During this period, Latin was the language of formal records and statutes. However, since only the learned were fluent in Latin, it never became the language of legal pleading or debate.
Therefore, for several centuries following the Norman invasion, three languages were used in England. English remained the spoken language of the majority of the population, but almost all writing was done in French or Latin. English was not used in legal matters. In 1356, the Statute of Pleading was enacted (in French). It stated that all legal proceedings should be in English, but recorded in Latin.
As the printed word became more widely used, some writers made an effort to adopt words derived from Latin, in order to make their text more sophisticated. Some legal words taken from Latin in this way are adjacent, frustrate, inferior, legal, quiet and subscribe.
English was adopted for different kinds of legal documents at different times. Wills began to be written in English in about 1400. Statutes were written in Latin until about 1300, in French until 1485, in English and French for a few years, and in English alone from 1489.
The result of this history is that modern legal English contains an unusually high percentage of words and phrases derived from French and Latin as compared to ordinary English. Consider this simple force majeure clause:
Neither party shall be liable to the other for failure to perform or delay in the performance of its obligations caused by any circumstances beyond its reasonable control.
It contains 28 words, of which 17 are Old English, 7 Old French and 4 Latin. Of the Old English words, 9 are articles or prepositions (e.g. the, to, for, in, by). All the important legal terms (e.g. party, liable, obligations, reasonable, perform) are either Old French or Latin.
It follows that Latin-based terminology is essential to legal English. To use a computing analogy, we might say that where legal English is concerned, English is the ‘hardware’ which determines the grammatical construction of the sentences, but the Latin-based terminology is the ‘software’ which provides the legal meaning.
If I tried to draft the same clause relying solely on Germanic-based language, I would fail. The closest I can get is:
It’s not anyone’s fault if they cannot do what they said they would do owing to something they could not do anything about.
Here, we have 23 words, of which 22 are from Old English and Old Norse (an old Scandinavian language) and only one (fault) is from Latin. But it is a painfully unsophisticated text, which lacks the legal precision of the first text and would not work at all without the use of the word fault.
Monday, 17 January 2011
Tuesday, 14 December 2010
Beware of Uncountable Nouns
Some nouns in English are uncountable. In other words, they are not used with a or an and do not have plural forms. This is typically the case with abstract or conceptual nouns, such as information, litigation, training, advice.
With the word ‘information’, for instance, you cannot write, ‘we have received an information’; nor can you write, ‘we have received some informations’. You can, however, write:
We have received some information.
OR
We have received several pieces of information.
In other words, you can either use the conceptual word in a general singular sense (‘some information’) or you can pluralise it using an auxiliary word (i.e. ‘pieces’ in ‘pieces of information’).
In legal contexts it is often possible to find an alternative countable word. For instance, while it is wrong to write, ‘the company has been involved in several litigations’, it would be perfectly acceptable to write that the company has been involved in several cases, claims, lawsuits etc.
With the word ‘information’, for instance, you cannot write, ‘we have received an information’; nor can you write, ‘we have received some informations’. You can, however, write:
We have received some information.
OR
We have received several pieces of information.
In other words, you can either use the conceptual word in a general singular sense (‘some information’) or you can pluralise it using an auxiliary word (i.e. ‘pieces’ in ‘pieces of information’).
In legal contexts it is often possible to find an alternative countable word. For instance, while it is wrong to write, ‘the company has been involved in several litigations’, it would be perfectly acceptable to write that the company has been involved in several cases, claims, lawsuits etc.
Wednesday, 17 November 2010
How to Avoid Using Sexist Language
It is inappropriate to use the personal pronouns he or his (or she or her) to refer to a person whose sex might be male or female. English has a number of gender-neutral words such as person, as well as a number of gender-neutral pronouns such as anyone, everyone and no one. However, it does not have gender-neutral singular personal pronouns.
A good workaround is to use the plural possessive form, their. The Oxford English Dictionary 2001 sanctions the use of this form to refer to ‘belonging or associated with a person whose sex is not specified’. In this way, the writer can avoid using sexist language. For example:
Every competent lawyer must ensure that their legal knowledge is kept up to date.
Other methods can also be employed to avoid using he or his. These include:
• Deleting the pronoun reference altogether if possible. For example, ‘the director read the documents as soon as they were delivered to him’: delete to him.’
• Changing the pronoun to an article like a or the. For example, ‘the sales representative assisted the customer with his order’ can be changed to ‘the sales representative assisted the customer with the order’.
• Using who, especially when he follows if. For example, ‘if he does not pay attention to detail, a finance officer is worse than useless’ should read ‘the finance officer who does not pay attention to detail is worse than useless’.
• Repeating the noun instead of using a pronoun. For example, ‘When considering the conduct of negotiations, the delegate should retain an objective view. In particular, he [read the delegate] should…’
• Use the plural form of the noun. For example, instead of writing ‘a lawyer must check that he has all the relevant papers before attending court’, write ‘lawyers must check that they have all the relevant papers before attending court’.
• Use the infinitive form of the verb, including to (e.g. to perform, to draft etc). For example, instead of writing ‘the lawyer agrees that he will draft the contract’, write ‘the lawyer agrees to draft the contract’.
• If all else fails, use the passive form. For example, instead of writing ‘he must deliver the files to X’, write ‘the files must be delivered to X’. This is not a perfect solution, since the passive form makes it unclear who is responsible for delivering the files to X. Therefore, it should only be used if the identity of the parties has already been established in a previous sentence, or if the question of responsibility for undertaking the actions is unimportant.
A good workaround is to use the plural possessive form, their. The Oxford English Dictionary 2001 sanctions the use of this form to refer to ‘belonging or associated with a person whose sex is not specified’. In this way, the writer can avoid using sexist language. For example:
Every competent lawyer must ensure that their legal knowledge is kept up to date.
Other methods can also be employed to avoid using he or his. These include:
• Deleting the pronoun reference altogether if possible. For example, ‘the director read the documents as soon as they were delivered to him’: delete to him.’
• Changing the pronoun to an article like a or the. For example, ‘the sales representative assisted the customer with his order’ can be changed to ‘the sales representative assisted the customer with the order’.
• Using who, especially when he follows if. For example, ‘if he does not pay attention to detail, a finance officer is worse than useless’ should read ‘the finance officer who does not pay attention to detail is worse than useless’.
• Repeating the noun instead of using a pronoun. For example, ‘When considering the conduct of negotiations, the delegate should retain an objective view. In particular, he [read the delegate] should…’
• Use the plural form of the noun. For example, instead of writing ‘a lawyer must check that he has all the relevant papers before attending court’, write ‘lawyers must check that they have all the relevant papers before attending court’.
• Use the infinitive form of the verb, including to (e.g. to perform, to draft etc). For example, instead of writing ‘the lawyer agrees that he will draft the contract’, write ‘the lawyer agrees to draft the contract’.
• If all else fails, use the passive form. For example, instead of writing ‘he must deliver the files to X’, write ‘the files must be delivered to X’. This is not a perfect solution, since the passive form makes it unclear who is responsible for delivering the files to X. Therefore, it should only be used if the identity of the parties has already been established in a previous sentence, or if the question of responsibility for undertaking the actions is unimportant.
Sunday, 3 October 2010
Hyphenation
The question of when to use a hyphen – i.e. a horizontal line connecting two words – often causes problems.
Most writers are comfortable with the idea of using hyphens to connect a prefix to a word. For instance, legal terms beginning with non-, pre-, co- are often hyphenated, and common examples include non-statutory, pre-trial, co-defendant.
However, confusion arises when it comes to connecting separate words together – should a hyphen be used or not?
In brief, the rule is that hyphens are used to connect words that are more closely connected to each other than the surrounding syntax. This is often the case when one word is a noun (e.g. tax) and the other word is an adjective (e.g. exempt) or adverb (e.g. neutrally), and particularly where these words taken together have an adjectival function. For example, take the sentence:
The company made a tax-exempt transfer.
The words tax-exempt are clearly more closely connected than the surrounding words, and taken together they have the role of an adjective in relation to the word transfer – they describe the nature of the transfer. In other words, if you were to ask what kind of transfer was involved, you would get the answer – a tax-exempt transfer. And a hyphen would appear between tax and exempt to emphasise the unity of this term.
However, if both words involved are nouns, they are more likely to stand alone and not require hyphenation. So, while tax-exempt is hyphenated, tax exemption should not be hyphenated.
Most writers are comfortable with the idea of using hyphens to connect a prefix to a word. For instance, legal terms beginning with non-, pre-, co- are often hyphenated, and common examples include non-statutory, pre-trial, co-defendant.
However, confusion arises when it comes to connecting separate words together – should a hyphen be used or not?
In brief, the rule is that hyphens are used to connect words that are more closely connected to each other than the surrounding syntax. This is often the case when one word is a noun (e.g. tax) and the other word is an adjective (e.g. exempt) or adverb (e.g. neutrally), and particularly where these words taken together have an adjectival function. For example, take the sentence:
The company made a tax-exempt transfer.
The words tax-exempt are clearly more closely connected than the surrounding words, and taken together they have the role of an adjective in relation to the word transfer – they describe the nature of the transfer. In other words, if you were to ask what kind of transfer was involved, you would get the answer – a tax-exempt transfer. And a hyphen would appear between tax and exempt to emphasise the unity of this term.
However, if both words involved are nouns, they are more likely to stand alone and not require hyphenation. So, while tax-exempt is hyphenated, tax exemption should not be hyphenated.
Thursday, 9 September 2010
How to Cut Unnecessary Words
Legal documents tend to be long and difficult to read. While this is to a great extent simply the nature of the beast, a number of things can be done to avoid wasting words. Here are a few suggestions.
1) Watch the use of which. This word is frequently used unnecessarily, usually involving further unnecessary verbiage. For example, the sentence:
These situations are governed by agreements which are made between different entities.
may be reduced to:
These situations are governed by agreements between different entities.
2) Use pronouns where possible. The use of pronouns avoids repetition of nouns, which is useful particularly where lengthy noun phrases (such as the names of documents or laws) are involved. For instance, try to avoid writing sentences like this:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors replace the large number of different agreements previously used.
Write instead:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. They replace the large number of different agreements previously used.
Or, even better:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force, and replace the large number of different agreements previously used.
However, as discussed in an earlier post, one of the most common reasons for ambiguity in a text is where a sentence contains two or more nouns together with one pronoun in such a way that it becomes unclear which noun the pronoun is intended to replace. So only use a pronoun when it is crystal clear to what it relates.
3) Use verbs instead of nouns where possible. It is all too easy to write long and dreary sentences using conceptual nouns. For example:
It is important to effect a reduction of operating costs during the implementation of the agreement.
However, by converting reduction and implementation into verbs, this sentence could be rewritten as follows:
It is important to reduce operating costs when implementing the agreement.
1) Watch the use of which. This word is frequently used unnecessarily, usually involving further unnecessary verbiage. For example, the sentence:
These situations are governed by agreements which are made between different entities.
may be reduced to:
These situations are governed by agreements between different entities.
2) Use pronouns where possible. The use of pronouns avoids repetition of nouns, which is useful particularly where lengthy noun phrases (such as the names of documents or laws) are involved. For instance, try to avoid writing sentences like this:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors replace the large number of different agreements previously used.
Write instead:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. They replace the large number of different agreements previously used.
Or, even better:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force, and replace the large number of different agreements previously used.
However, as discussed in an earlier post, one of the most common reasons for ambiguity in a text is where a sentence contains two or more nouns together with one pronoun in such a way that it becomes unclear which noun the pronoun is intended to replace. So only use a pronoun when it is crystal clear to what it relates.
3) Use verbs instead of nouns where possible. It is all too easy to write long and dreary sentences using conceptual nouns. For example:
It is important to effect a reduction of operating costs during the implementation of the agreement.
However, by converting reduction and implementation into verbs, this sentence could be rewritten as follows:
It is important to reduce operating costs when implementing the agreement.
Tuesday, 24 August 2010
Mastering Collocations
One of the most difficult aspects of English usage is achieving idiomatic mastery of collocations.
Collocations are expressions which consist of two or more words which frequently appear together. These may involve adjectives and nouns (e.g. ‘a derisory offer’ or ‘a binding contract’), verbs and nouns (‘to fulfil obligations’ or ‘to cast aspersions’), adverbs and nouns (‘legally valid’ or ‘wholly fraudulent’).
Some collocations are relatively flexible – i.e. the verb, adverb or adjective part of the phrase may be replaced by another word to produce a broadly similar meaning. For example, in the phrase ‘to fulfil obligations’, the word ‘fulfil’ could be replaced by ‘meet’ without altering the meaning of the phrase.
Other collocations are less flexible. Consider, for example, the relatively common phrase ‘to cast aspersions’. An aspersion is a disparaging or damaging remark. It is always ‘cast’ (not made, thrown, spoken etc). Another example is the common phrase ‘to hold discussions’. Here, discussions are generally ‘held’ (not made, ‘carried out’ etc).
You can get around the danger of constructing a false collocation by using another phrase altogether, or even a single word. The phrase ‘to cast aspersions’ could be replaced by ‘to make disparaging remarks’, and ‘to hold discussions’ may in most cases be reduced to ‘to discuss’. However, the use of unfamiliar pairings of words will instantly appear subtly wrong to a native speaker of English.
Here are a few examples of collocations in common use in legal English:
assign rights
authorised representative
binding contract
binding obligation
cancel an order
cast aspersions
contractual breach
copyright protection
derisory offer
detrimental effect
enter into a contract
estimated costs
exercise discretion
flagrant breach
fulfil criteria
fulfil obligations
hold a discussion
irrevocably appoint
legally valid
managerial position
public domain
reasonable control
reasonable costs
relevant issue
rescind a contract
terminate a contract
wholly fraudulent
written notice
written request
See www.legalenglishstore.com for more legal English content.
Collocations are expressions which consist of two or more words which frequently appear together. These may involve adjectives and nouns (e.g. ‘a derisory offer’ or ‘a binding contract’), verbs and nouns (‘to fulfil obligations’ or ‘to cast aspersions’), adverbs and nouns (‘legally valid’ or ‘wholly fraudulent’).
Some collocations are relatively flexible – i.e. the verb, adverb or adjective part of the phrase may be replaced by another word to produce a broadly similar meaning. For example, in the phrase ‘to fulfil obligations’, the word ‘fulfil’ could be replaced by ‘meet’ without altering the meaning of the phrase.
Other collocations are less flexible. Consider, for example, the relatively common phrase ‘to cast aspersions’. An aspersion is a disparaging or damaging remark. It is always ‘cast’ (not made, thrown, spoken etc). Another example is the common phrase ‘to hold discussions’. Here, discussions are generally ‘held’ (not made, ‘carried out’ etc).
You can get around the danger of constructing a false collocation by using another phrase altogether, or even a single word. The phrase ‘to cast aspersions’ could be replaced by ‘to make disparaging remarks’, and ‘to hold discussions’ may in most cases be reduced to ‘to discuss’. However, the use of unfamiliar pairings of words will instantly appear subtly wrong to a native speaker of English.
Here are a few examples of collocations in common use in legal English:
assign rights
authorised representative
binding contract
binding obligation
cancel an order
cast aspersions
contractual breach
copyright protection
derisory offer
detrimental effect
enter into a contract
estimated costs
exercise discretion
flagrant breach
fulfil criteria
fulfil obligations
hold a discussion
irrevocably appoint
legally valid
managerial position
public domain
reasonable control
reasonable costs
relevant issue
rescind a contract
terminate a contract
wholly fraudulent
written notice
written request
See www.legalenglishstore.com for more legal English content.
Tuesday, 3 August 2010
Ambiguity: How to Avoid It
Ambiguity occurs when writing can be interpreted to mean more than one thing, and these things are in conflict with each other.
You can often get away with this in ordinary English if one meaning seems more likely than another. In legal English – especially in contract drafting – it can be disastrous. Anglo-American lawyers still take a literalist approach to construction – i.e. contract words are interpreted according to their literal meaning rather than according to the purpose and effect that can be presumed from the context. A slightly ambiguous piece of phrasing may end up costing thousands.
There are many reasons why ambiguity occurs, but here are some of the main offenders:
(1) Use of a word which has more than one meaning in the context
Many English words have a number of different meanings depending on the context in which they are used. This is a natural feature of the language. Take, for example, the word following in these sentences:
Please refer to the following paragraph.
AND
There is a car following us.
It can be seen that the meaning of the word is very different in each sentence. However, this is not a problem because the context tells us which meaning applies. In the first sentence, the ‘following paragraph’ means the next paragraph. In the second sentence, ‘a car following’ means a car in pursuit (i.e. behind ‘us’).
Sometimes, however, the context does not clearly indicate which meaning applies. Consider this piece of legal verbiage:
Even if the company sells the product, if it does not usually sell this particular product in the usual course of business it may not be held liable.
The problem here is may, which either refers to a possibility (e.g. ‘I may go for a swim today, or I may not. It depends on how I feel later.’) or to an entitlement (e.g. ‘The purchaser may inspect the goods at the seller’s warehouse’). So, depending on how one reads this sentence, it either means that there is a possibility that the company will not be held liable or that there is no entitlement to hold it liable. Neither of these options makes perfect sense and each is in conflict with the other.
The solution is to turn may not into cannot. Thus:
Even if the company sells the product, if it does not usually sell this particular product in the usual course of business it cannot be held liable.
(2) Unclear pronoun reference
The use of pronouns is an excellent way to avoid clumsy repetition of nouns, but this technique can result in confusion if carelessly handled. For example:
John drafted the contract for the client during the meeting itself and he then read it through carefully.
The problem here is that since we don’t know the gender of the client, the he referred to in the sentence may either be John or the client.
The key issue, obviously, is to ensure that it is clear which noun each pronoun is supposed to replace. If there is a possibility of doubt, use a proper noun instead. For example:
John drafted the contract for the client during the meeting itself and the client then read it through carefully.
(3) Poor punctuation
Punctuation can have a drastic impact on the meaning of a sentence. Consider these two pairs of sentences:
The judge said the accused was the most heinous villain he had ever met.
The judge, said the accused, was the most hei¬nous villain he had ever met.
AND
Woman without her man would be a savage.
Woman – without her, man would be a savage.
In the unpunctuated sentences above, the word order dictates the natural subject-object relationship. The judge and woman, respectively, are the subjects of the two sentences. The use of punctuation changes this around in both cases, thus creating radically different meanings.
The point to bear in mind is that punctuation is not just window-dressing used to makes sentences look tidy. In many cases it can dictate the meaning of the sentence – and should therefore be used with great care.
(4) Separation of verb phrase
The meaning of English sentences can in many cases be changed completely by altering the word order. For example:
My client has discussed your proposal to fill the drainage ditch with his partners.
This sentence probably means that the client has discussed with his partners the proposal to fill the drainage ditch – but it is capable of being interpreted to mean that the client is considering throwing his partners into the drainage ditch.
The ambiguity in this sentence is caused by the sep¬aration of the verb phrase ‘discussed with’ from its object (‘his partners’). By reuniting these parts of the whole phrase the real meaning of the sentence becomes clear:
My client has discussed with his partners your proposal to fill the drainage ditch.
Ambiguity and vagueness
Ambiguity should be distinguished from mere vagueness. Vagueness arises when the language used is imprecise or non-committal, and may sometimes be intentional (for example, in order to avoid giving a specific commitment on a particular issue). Here is an example:
We must do lunch sometime.
Rupert Haigh
See www.legalenglishstore.com and www.forum-legal.com for more legal English content.
You can often get away with this in ordinary English if one meaning seems more likely than another. In legal English – especially in contract drafting – it can be disastrous. Anglo-American lawyers still take a literalist approach to construction – i.e. contract words are interpreted according to their literal meaning rather than according to the purpose and effect that can be presumed from the context. A slightly ambiguous piece of phrasing may end up costing thousands.
There are many reasons why ambiguity occurs, but here are some of the main offenders:
(1) Use of a word which has more than one meaning in the context
Many English words have a number of different meanings depending on the context in which they are used. This is a natural feature of the language. Take, for example, the word following in these sentences:
Please refer to the following paragraph.
AND
There is a car following us.
It can be seen that the meaning of the word is very different in each sentence. However, this is not a problem because the context tells us which meaning applies. In the first sentence, the ‘following paragraph’ means the next paragraph. In the second sentence, ‘a car following’ means a car in pursuit (i.e. behind ‘us’).
Sometimes, however, the context does not clearly indicate which meaning applies. Consider this piece of legal verbiage:
Even if the company sells the product, if it does not usually sell this particular product in the usual course of business it may not be held liable.
The problem here is may, which either refers to a possibility (e.g. ‘I may go for a swim today, or I may not. It depends on how I feel later.’) or to an entitlement (e.g. ‘The purchaser may inspect the goods at the seller’s warehouse’). So, depending on how one reads this sentence, it either means that there is a possibility that the company will not be held liable or that there is no entitlement to hold it liable. Neither of these options makes perfect sense and each is in conflict with the other.
The solution is to turn may not into cannot. Thus:
Even if the company sells the product, if it does not usually sell this particular product in the usual course of business it cannot be held liable.
(2) Unclear pronoun reference
The use of pronouns is an excellent way to avoid clumsy repetition of nouns, but this technique can result in confusion if carelessly handled. For example:
John drafted the contract for the client during the meeting itself and he then read it through carefully.
The problem here is that since we don’t know the gender of the client, the he referred to in the sentence may either be John or the client.
The key issue, obviously, is to ensure that it is clear which noun each pronoun is supposed to replace. If there is a possibility of doubt, use a proper noun instead. For example:
John drafted the contract for the client during the meeting itself and the client then read it through carefully.
(3) Poor punctuation
Punctuation can have a drastic impact on the meaning of a sentence. Consider these two pairs of sentences:
The judge said the accused was the most heinous villain he had ever met.
The judge, said the accused, was the most hei¬nous villain he had ever met.
AND
Woman without her man would be a savage.
Woman – without her, man would be a savage.
In the unpunctuated sentences above, the word order dictates the natural subject-object relationship. The judge and woman, respectively, are the subjects of the two sentences. The use of punctuation changes this around in both cases, thus creating radically different meanings.
The point to bear in mind is that punctuation is not just window-dressing used to makes sentences look tidy. In many cases it can dictate the meaning of the sentence – and should therefore be used with great care.
(4) Separation of verb phrase
The meaning of English sentences can in many cases be changed completely by altering the word order. For example:
My client has discussed your proposal to fill the drainage ditch with his partners.
This sentence probably means that the client has discussed with his partners the proposal to fill the drainage ditch – but it is capable of being interpreted to mean that the client is considering throwing his partners into the drainage ditch.
The ambiguity in this sentence is caused by the sep¬aration of the verb phrase ‘discussed with’ from its object (‘his partners’). By reuniting these parts of the whole phrase the real meaning of the sentence becomes clear:
My client has discussed with his partners your proposal to fill the drainage ditch.
Ambiguity and vagueness
Ambiguity should be distinguished from mere vagueness. Vagueness arises when the language used is imprecise or non-committal, and may sometimes be intentional (for example, in order to avoid giving a specific commitment on a particular issue). Here is an example:
We must do lunch sometime.
Rupert Haigh
See www.legalenglishstore.com and www.forum-legal.com for more legal English content.
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