LANGUAGE OF CONTRACT

1.5 English
Submitted by: Anika Sharma
UID-UG-19-16
Submitted to: Assn. Prof. Sopan Shinde
B.A.LLB 1st year 1st semester

September 2019

MAHARASHTRA NATIONAL UNIVERSITY, NAGPUR

 TABLE OF CONTENTS
S.no. Title Page
no.
1 Introduction 3

2 Impediments in Interpretation 4
3 Features of Contract language 5-6

4 Why complex language 6-7

5 Remedies for legalese in contracts 7-9

6 Conclusion 9
 Language of Contracts
INTRODUCTION
Language is a tool for communication and contracts are written communication between two
parties who enter into an agreement. This communication needs to very clear, precise and
easily comprehensible and not verbose and complicated. In order to achieve this kind of
communication, the language plays an imperative role.

Language is indispensable to contract because “verba volant scripta manent” which means
“spoken words fly away, written words remain” and contract is most of the times in written
form and once an agreement is enforced by law it becomes binding on both the parties. So,
while drafting or interpreting the contracts both the lawyer and parties needs to be very
careful regarding each and every word used as the same word may convey different meanings
to different people. In a contract, the job of a lawyer is not negotiate over terms and
conditions but to draft or interpret those terms and conditions in favor of their clients. Here
comes the importance of language for contract.

Contracts without precise language has no roots as it will not serve the purpose for which it
will be prepared i.e., to avoid any disputes in future circumstances. In order to achieve this
purpose language is the key factor. So, further this project explores the consequences that will
lead in case of perplexing language being used in contract and remedies to avoid this
perplexity.

Contracts are drafted for consumers who does not belong to the legal regime and for them
many times it becomes difficult to comprehend the contracts written in traditional legalese.
Such legalese are extensively promoted by legal professionals as for them use of legalese
leads to precision in their writing. But instead of precision it leads to perplexity and give
lawyers or parties an opportunity to fix different meaning in the same contract. This quandary
arises when parties try to incline the terms of contract in their favor by interpreting the words
and language as per their discretion. This problem of legalese is addressed by many business
organization and even by government of certain foreign countries. They adopted plain
language movement, in order to resolve this issue of legalese being interpreted in different
ways at times as per the desire of draftsmen and parties.

Contracts are not only about negotiating terms and conditions but is also about how those
terms and conditions are expressed in language because in case of any dispute what makes
the difference is just the way language is interpreted and drafted as parties to the contract are
well acquainted with the terms of contract.

IMPEDIMENTS OF INTERPRETATION
All contracts are prepared to describe future circumstances and it is not possible to describe
all sets of future circumstances and therefore they are incomplete. This incompleteness is
endemic to contracts and statutes. To the ordinary person, this is a problem, to the lawyer, it
is an opportunity for advantage. This incompleteness facilitates the need for interpretation.
Interpretation has some loopholes in itself as it involves discretion of the interpreter some of
which are as follows.

When parties to the contract tries to wiggle out obligation, they try to switch to the narrower
meaning of a term. This is called extensional pruning, initial use of words is what it appears
to be commonly accepted meaning but in order to do away with the obligations they transit to
a narrower meaning. It can come up in a contract setting in the following way

A construction company might agree in its contract to clean up the work site at the conclusion
of its construction activities, but it might later interpret this language not to include cleaning
up spills or detritus that flows or otherwise finds its way off the work site. It moves from an
implicit broad meaning of “work site” to a narrower one. Many such wiggles can arise while
interpreting contract.

The interpretive rule of effet utile which means “useful effect” assumes that utilization of
different words intend to convey different meanings – that use of different words are not just
for stylistic reasons or due to random unintentional usage variations. A draftsman aware
about this rule will never use different words for conveying the same meaning. Moreover, the
effect utile principle requires an assumption that each word is meaningful and that there is no
unnecessary repetition or surplus. A corollary of effet utile is the presumption of consistent
usage : where a text uses the same term in multiple places is assumed to mean the same thing.

But in several instances draftsman do not follow this principle and it leads to confusion
among the consumers for whom the contracts are drafted.1

1
Joel P. Trachtman (2013) The Tools of Argument: How the Best Lawyers Think, Argue, and Win, Createspace
Independent Publishing Platform
 FEATURES OF CONTRACT LANGUAGE
When contracts are drafted, legalese i.e., the formal and technical language of legal
documents is used which is most of the times incomprehensible and baffling for a layman.
This happens because of some of the features of the legalese such as-

Use of very lengthy and complex sentences with many embedded clauses. Sometimes, a
single segment consists of seventy to eighty words.

Misplaced phrases: Phrases used in contracts are seemed to be out of place in a segment
which gives a flawed essential element instruction within the essential element instructions
which may lead to a disjunctive answer by jury, if found pursuant to evidence cited.2

Illogical Ordering of Ideas : While drafting contracts, drafters frequently inform the readers
about the conditions, and distracting details such as the date, someone’s address and
the origin of authority instead of arranging the information in a chronological,
hierarchical or some other logical order and providing some supportive details.

Appearance of Extreme Precision : the outcome of which is often confusing and intimidating
instead of being precise.

Impersonality : The third person(he, she, it, they, etc.) is used frequently instead of the first(I,
we) and second person(you) which is more natural in the ordinary course.

Conditional Sentences: This kind of sentences indicates numerous contingencies that needs to
be satisfied in order to reach a legal outcome. Law often needs to draw many fine
conditional lines to depict when it is applied and when it does not. But this
contingencies in forms can be better handled in ordinary English prose in simpler form
than the conditional sentences characterized in legal prose

Nominalization: It means nouns constructed by verbs by adding an “ing”, “tion”, “al” at the
end. For example: after consideration of facts, instead of the court considered the courts.
Such use of words makes the sentence ambiguous and unclear.3

2
Robert W. Benson and Joan B. Kessler “Legalese V. Plain English: An Empirical Study Of Persuasion And
Credibility In Appellate Brief Writing” Loyola of Los Angeles Law Review
3
RW Benson (1985) The End Of Legalese: The Game is Over page no 519 New York University , Law Review
and Social Change
Odd Graphic Design: The frequent use of punctuation, capitalization, sectioning, headings,
indentation, typeface, type size and other graphic devices in such absurd way that it
attaches no meaning to what is being said.

Each of this features are by itself against the clear understanding of the text.

Legalese Failed the Field Test : The field test is the most precise and unmediated way to know
whether the language is comprehensible or not. The meaning of legalese has been
litigated in many cases makes the lacuna of the legalese clearly evident. If the legalese
is clearly understandable there is no need for it to be litigated. So, where contracts are
drafted to avoid disputes between parties in future but because of the indeterminacy of
the legalese, the purpose for which contracts are framed is not fulfilled.4

Avoid using passive voice and use active voice: This is because sentences in passive voice
somewhat put less emphasis on subject and prioritize object which makes it difficult
for the reader to identify subject which is the main element in a sentence.

WHY COMPLEX LANGUAGE?

The complexity of structures of documents will always make them hard to read. But, is it
impossible to read? It is not clear to anyone, including their drafters, that the documents are
full understood. It is most the time assumed that there is a trade-off between simplicity and
precision and the contracts are not reader friendly because they are accurate and unambiguous.

In the current drafting style, the most prominent feature is extensive use of legalese – the
jargon or specialized language that lawyers use to communicate with their fellow lawyers and
others members of legal community, particularly justices, judges and paralegal. It is
presumed that that target audience is familiar with the legal concepts and legal systems.
That’s why a layman not so equipped with all those legalese will find it too wordy for
comfort and very often, beyond understanding and comprehension.5

This kind of complex language is used in drafting contracts because in law every word or
term has its very specific and accurately defined meaning. Some of the words may appear

4
Supra footnote no. 2
5
Howard Darmstadter (November 2010) vol.66 “Precision’s Counterfeit: The Failures of Complex Documents,
and Some Suggested Remedies “The Business Lawyer
very unusual to persons who are not familiar with the law as in law words can have different
meanings from its ordinary context.

One of the impediments in understanding complex legal contracts is the programming style
which provides for few explanation about the what the section, sentence and paragraph wants
to accomplish. Generally, lawyers are opposed to such explanations because they might fear
that the explanations if given will not be so carefully drafted as the rest of the contract/
document. So, it is feared that a poorly drafted explanation may override a tightly drafted
document. But, it is more likely that a explanation given along with the document will make
it is easier for the reader to reach to the correct interpretation of the ambiguous words used in
the documents.6

The legalese are popularly used by lawyers because they have accepted the style that lawyers
have always adopted. The sad thing is that law school also do not teach students to write in
plain language instead encourage them to use the old traditional legal language. This
language might be apt for law review but it is not a good medium to communicate to non-
lawyers who after all are consumers for whom the lawyers draft contract.

Another reason for use of legalese in drafting contracts is necessity because they draft
documents for a very hostile audience in a very competitive atmosphere, where there are
loophole- seeking opponents. They fear that any change in drafting style may lead to
defective drafting, ambiguity instead of simplicity and spectre of professional negligence.

With the fast pace development in legal practice, it reduces the time for finding novel ways to
express old ideas and when there is less time available, drafters prefer to stick to the old
practices than risk the new. But many of them settled in their practice know that what they
are drafting can be recast in a simpler language, without the fear of any defect. 7

REMEDIES FOR COMPLEX LANGUAGE IN CONTRACTS

There is neither the need for use of words such as “heretofore”, “indemnification”, “majeure”
and phrases like “notwithstanding anything to the contrary herein” nor the need to use
awkward sentences containing innumerable semicolons and archaic grammar to make a
contract worthy of signature. The use of archaic words and complex legal language make it

6
supra footnote no.5
7
Peter Butt (June/July 2001) “Legalese versus Plain Language “ The Inaugural Sir William Dale Memorial
Lecture
difficult for the non-lawyers to understand the jury instructions, consumer contracts, consent-
to-surgery forms or statutes. In addition, it has been recurrently predicted by readability
formulas that people with average education are unable to comprehend voters’ pamphlets,
ballot prepositions, statutes, standard contract forms, trust clauses, government notices or
other typical legal contracts or documents. This predictions are repeatedly ratified by the
failure of such contracts to convey the information clearly when put to practical use. By now
it is very much evident that the reason for incomprehension is the use of legal language in
which contracts are drafted.

A contract should be such it does not take innumerous hours to negotiate and should be so
that business leaders without calling their attorneys can easily interpret the agreement they
need to administer. The business partners can sit together for a while without their lawyers
and can truly read, understand and feel comfortable in signing the contract. Here, we are not
talking about a simplified agreements with minimum words and cleaner fonts but a contract
which can be easily comprehended by a layman with no context and explanations. A contract
with fewer pages and lesser word count will not make it more comprehensible. Even if the
page and word count drops and the negotiation time remains the same or increases, nobody
will care about the length of the agreement. After all matter is all about making contracting
experience easier for consumers as they determine success of any business.8

The only panacea to this problem of using legalese in contracts and legal documents is the
use of plain English or plain language which is easily understandable and comprehensible.
Plain English not only makes the contract easily understandable but also save time on the
front end of the transaction and make it possible for the business to readily get into the
project, manage it well and even helps in promptly resolving the disputes.

In the study for Law Reform Commission of Victoria, lawyers read two different version the
same statutes , one written in plain language and the other in the complex traditional legal
language. The time taken to understand the plain language version was one- half or one- third
less than required to comprehend the traditional version. Also, plain language is easier to read
and also reduces the queries related to meanings. Many corporations and government
agencies have saved substantial amounts by converting their standard- form documents to
plain language.

8
Shawn Burton(January- February 2018) “The Case For Plain – Language Contracts” Harvard Business Review
Plain language also helps in exposing errors. In contrast, legalese obscure the uncertainties
and ambiguities because it is hard to locate errors in a dense and intricate prose. Errors such
as misplaced legal concepts, words and phrases been dropped out are more easily spotted
when sentences are short and the text is broken into more digestible forms.

The use of plain language may also improve the image of the legal profession, opacity of
whose traditional legal language has always been a source of ridicule. Apart from being
opaque, legal language is impersonal and creates a sense of apathy. It is a widely held public
perception that contracts drafted in legalese are difficult to read and seriously
incomprehensible.9

CONCLUSION

Language is core of a contract or any legal document but the language in which contracts are
currently drafted is so perplexing that a person who does not belong to legal profession can’t
understand it and even if he can it takes him long hours to negotiate that agreement. This
feature of contract drafting is creating a lot of problems for consumers for whom the
contracts and documents are actually drafted as it is being very tough for them to comprehend
these agreements and many times they even sign the contracts without completely
understanding of terms and conditions of contract. This problem of incomprehensible legal
language necessitated the emergence of plain language in drafting legal documents so that the
contracts for whom they are prepared can easily interpret it. The use of plain language has
many advantages in itself, firstly the most important is that it is easily discerned and
secondly, it saves time and cost mainly for businessmen who are very busy and each time
they need to call an attorney to interpret the contract and deal with the partners or any other
company. Many countries and companies have adopted this kind of language for drafting the
contract and they found it very useful. So, now there is need for Indian legal system to shift
from its old traditional style of drafting contracts in legal language to more understandable
and clear plain language for the same. This is because the contracts drafted with more clarity
have lesser chances of being in disputes. So, plain language is to be adopted. But, even this
needs to be taken care of that this simplicity does not cost precision because precise use of
language while drafting contracts is indispensable.

9
Supra footnote no.7