Is it possible to create contracts (buying something like a car or house, for example) that are written in plain English (without the “heretofores”, etc)? Why must we have documents filled with $10 words? Is it to protect everyone, or just something to give lawyers something to do?
That would be so refreshing, but I am sure that somebody somewhere would use the “vague” wording to weasel out of some contractual obligation.
I believe that Legalese came about due to the need for extreme detail in documents that may have life-shattering consequences on people.
Just imagine a death row inmate who finds an ambiguous pronoun in the written order to terminate his life.
Yes, unfortunately most of the awkward-sounding legal terms and phrases have been tested and tried in the court system and thereby (and forthwith!) have well established, clear-cut legal meaning.
If we wrote a contract in clear, normal English we would only have as much precision as normal English words have. In other words, not much.
If the contract were between friendly parties and everyone understood it to mean the same thing there would be no problem. But if we’re already assured the other party is honest and beneficent we probably don’t need a legal contract to begin with. Contracts exist to maintain your claim when the other party defaults.
That’ll do, pig. That’ll do.
The prior replies are right. That said, I see documents all the time that could be more clearly written without losing the necessary precision. Mostly, this is because: a) the lawyer drafting the document is a poor writer; or b) the lawyer involved learned how to write that way 30 years ago and inertia has taken over.
Things are improving, too. You hardly ever see a contract that refers to “the party of the first part” any more, and the use of Latin terms is far less common now, especially in contracts.
Funny you should mention that. U.S. Governments on all levels are trying to cause “standard” contracts to be less legalistic. The trend is called “plain English.” For example, your credit card agreement refers to “You” (the cardholder) and “We” (the bank). It is also more readable generally than it used to be.
I work in the securities industry. The SEC has been pretty diligent about requiring prospectuses, brokerage contracts and other documents for investors to be easier to read. If you have Adobe Acrobat , you can go to this page and get a copy of the new regulations.
So it’s getting better. Slowly, to be sure. But better.
Livin’ on Tums, vitamin E and Rogaine
A lot of it is conservatism: a new wording can be just as specific as an older form, but the lawyer doesn’t want to take chances.
Much legal documentation is boilerplate. I once worked briefly in a lawyer’s office, typing up charges to be filed against people. The lawyer would say “Put in clause 1, 2, 15, 17, and 29.” Easier to do that (especially now with cut and paste) then think of something clearer.
“East is east and west is west and if you take cranberries and stew them like applesauce they taste much more like prunes than rhubarb does.” – Marx
Read “Sundials” in the new issue of Aboriginal Science Fiction. www.sff.net/people/rothman
Building on Chuck’s comments, much contractual language is boilerplate, and, it is perpetuated because many business transactions are conducted with neither side wanting to build any attorneys’ fees into the deal. Thus new contracts are cut’n’pasted (is that a word on its own yet?) together from older contracts by legal lay people who aren’t going to attempt a plain English rewrite.
This is called consumer discloser. In many states, consumer loan documents have pretty little charts that break down all the dollar amounts, interest, etc. Commercial and business purpose loan documents are not like this at all - its written free form in the document, and there isn’t language like:
(I’m not making this up) “I am borrowing $25,000. I will pay it back over 30 years time. My monthly payments will be $XXX. I will pay $15,000 in interest. Signed,”
In both cases, the language is almost all boiler plate, with the only exceptions being very large commercial deals. There are computer programs that produce these documents based on the criteria and codes entered into the software. Smaller banks just buy forms.
I am minded to… wait, let me restart that!
This reminds me of the time I had to present a motion in court dealing with a minor child’s interest in a lawsuit. I have forgotten the details, mercifully, but the motion itself was a riot to construct. My supervisor directed me to the ‘form’ drawer for a sample. I found in the drawer a copy of the most recently filed such motion, and began to read it, figuring I would simply fill in the appropriate names and dates, etc. To my horror, the example I was reading, filed in about 1988, began: “Know all ye men by these presents that…” The rest of the document was similarly filled with 19th Century ‘legalese.’
I refused to file such silliness. I went back to the relevant statutes, listed what they said the motion had to include, and composed a motion from the ground up, so to speak, in plain, easy-to-read English. My supervisor, an easy-going person, shrugged and said something to the effect of: “probably put us out of a job if anyone could do this,” then let me file it. It was approved without question, and when it came back from the judge approved, a small note was attached thanking me for making it readable! 
There are two reasons ‘legalese’ that is difficult to read or understand is used in contracts and legal papers. First, there are prepositions that convey specific meanings, meanings that are hard to convey without using quite a large number of smaller words, and these prepositions exist because they ARE helpful stating legally important things. Once you know them, it’s damned hard not to use them (e.g. heretofor, herein, etc.). Second, some time way back when the first such motion or contract was written, it probably used fairly simple language (after all, it’s usually best for a party to have something unambiguous when someone else will have to understand it). However, what happens with time is that court decisions regarding disputes over the meaning of the simple language cause later writers to add things to avoid another such dispute.
As an example: In California, an injured worker can completely settle his claim to workers’ compensation benefits for a lump sum of money only in certain circumstances. This happens quite frequently. There is a form put out by the state that the parties must use. On the front of the form, it specifically states that the settlement includes any right of the worker’s dependants to death benefits, unless the parties indicate otherwise. Despite this clear statement on the front, the CA Supreme Court held that, absent a specific declaration in the settlement that the death benefits WERE being settled, the settlement would not be read to settle the benefits (don’t ask, we had a very strange court in CA for a few years). So, on the second page, where there was space to add specific additional non-standard provisions, all such settlements contained a boiler-plate statement that the death benefits were being settled. By the time I started practicing in 1986, this statement had grown into a full paragraph that included all sorts of information that further court decisions had required to do what the front of the form, in one short sentence, supposedy did.
I one time filed such a settlement that stated in the extra space: “the parties agree that this form means what it says.” It did get a wry smile from the judge… 
Every trade and industry and group tends to develop their own vocabulary. Many people think sailors have developed their vocabulary just to show off and confuse others but things have specific names for the purpose of better communication.
This is too good an opportunity to let slip.
I was once considering leasing a business location. The owner of that location had a lease contract prepared by a CPA, for whatever reason I never understood. I refused to sign the thing because it contained this phrase:
“Time is of the essence in the fulfillment of this contract.”
The man who wrote the thing could not or would not tell me what he thought it meant or why he included it. The man who owned the property said that he had seen several contracts containing that phrase and wanted it included.
The contract included the date on which the lease would begin and the date on which it would end and I saw no need for any other references to time.
How about it, attorneys, was I being pig-headed?
Crystalguy
This reminds me of the time I was interviewing lawyers (to represent me in an upcoming divorce). Quite naively, I asked one fine practicianer of the law, if he would sign a contract with me-just a simple document sating that I would pay him so much money, for representing me. He refused it-he said “contracts are against the spirit of the atty-client relationship”-WOW! -it took me a while to figure that out!
CRYSTALGUY says:
This actually points out that “boilerplate” language, included in most contracts, is not necessarily extraneous or unnessecary – though arguably it was in your case, so maybe this isn’t a great example. The “time is of the essence” clause in a contract means that the services or goods contemplated by the contract are to be provided in a timely fashion – not six years from next Halloween. Then, if you’re not timely in providing the goods/services, you have breached the contract – because of the “time is of the essence clause.” Now, there really isn’t any need for it in a lease, because the consideration is due on a date-certain (the first of the month), so time is obviously of the essence in a lease. But that particular language is good to have in virtually all contracts, so I’m not surprised that a man unfamiliar with contract law, and seeing that it appears in most contracts, would refuse to take it out.
EGKELLY says:
This is utter B.S. Any attorney worth his salt has the client sign a retainer agreement that sets forth the service to be rendered and the price – in other words, a contract. The “spirit” of the “attorney-client relationship” deals with confidentiality of client disclosures, not with the existence or non-existence of a contract. I hope you got up, left, and went to an attorney who was willing to set forth, in writing, what she would do for you, and for what price.
Jodi
Fiat Justitia
I agree with Jodi. Let me expand upon her response to the first question, though. Let’s say you hire a contractor to remodel your kitchen. The contract sets forth a completion date of July 1, 2000, but the contractor ends up taking until July 20 to finish. Without a time is of the essense clause, his delay probably wouldn’t be considered to be material, and you would have a hard time recovering damages for breach of contract.
The time is of the essense clause changes this. In effect, you are saying that the time deadlines in the contract are important, and you wouldn’t have entered into the contract without them. Failing to meet a deadline is now a material breach of contract.
As it happens, I was most concerned about the thing because the man who prepared the contract was a CPA and not an attorney. I had another possible site to consider and I ended up going with that one. I had all but forgotten it until this thread started. Thanks for the clarification.
Crystalguy
I draft contracts all the time in my work. I’ve always considered the “time is of the essence” boilerplate to mean that a dispute over time is a contractual dispute and must be respected i.e. if you go to the contractor and complain that the job is six months behind schedule he can’t just brush you off and say “yeah, yeah, I’m working on it”. He must repect your complaint becuase it is a complaint of a violation of the agreement. If he does not address your complaint on the subject of time you may have the right to withhold payment. The timing requirements may be detailed elsewhere in the contract but the “time is of the essence” clause hammers home the point that a dispute over time may be enough to terminate the contract.
Not only possible, but popular. These may enforceably include (and not be limited to)oral contracts as well as simple or imformal (written) contracts. You can just as well use plain (7th - 12th grade vocabulating) English to establish the gist of terms with EXTENSIVE detail and qualification. Experience or history tells us that the honorable person can be relied on regardless of the simplicity of the contract, and the dishonest person cannot be relied upon regardless of the sophistication of the contract.
This is a bit tangential, but I remember reading the following somewhere. When the laws in England were first written down by the scribes, these people were so afraid of introducing loopholes that they wrote the laws using both the Latin and Anglo-Saxon terms, feeling that a bit of redundancy was better than a hole in the law. Thus we have inherited wordy legal expressions such as “aid and abet”, “cease and desist”, “show and prove”.
-Darren.