The definitions of “legalese” words are agreed upon, according to precedent in prior court cases. If contracts were written using other language, courts would have no precedent to bind them on what the words meant.
That being said, contracts in the USA are legally binding if they are in a foreign language, provided both parties understand the language. So it would follow that a contract would be binding if in “plain English” or vernacular, or even in Ebonics.
So, a contract is binding as long as it can be demonstrated that both parties understood the meaning of the contract, but enforcing it would not be the slam dunk it would be if it were a standard contract written in legalese that courts have defined the language of.
It’s not so much that the language is a jargon where very specific meanings are applied to everyday words. It’s mostly that, firstly, everyday use of language is extremely imprecise, and secondly, in a contract imprecision matters, where in everyday life imprecision usually doesn’t. Or if it does matter, we usually have long conversations, in person, with large amounts of body language thrown in, and the conversation occurs in a context.
If I say to someone “I’m going to the shops” then that’s probably clear enough for life in general.
But in a contract that just gives rise to a heap of issues. Which shops? When? Do I have to go or is this just a statement of non-binding intent? What are the consequences if I don’t go? Am I going to “the shops” in general or am I committed to going to every single shop at the shops? If a few of the lawyers here thought about this for a bit longer we would come up with dozens more issues.
In life, you would know which shops I meant. In context, you’d probably know whether I meant now or at some later time, and whether this was a commitment on my part to you or just a casual mention of something I intend to do. And so on.
To turn “I’m going to the shops” into a good contractual clause you can still use the words “I” and “going” and “shops”: you don’t need to use highly technical jargon with very specific meaning. But you do need to use a whole heap more words to set out exactly what you mean.
They are not for the most part. And yet…
I’ve had this debate with one of my partners. He likes to use flowery language in some circumstances where I would regard it as unnecessary. But what he says is that avoiding disputes and unhappiness is in part a matter of theatre: if two people sign a (legally binding but) casually written agreement one of them may not take the deal seriously, with costly implications if they feel they can - and try to - renege.
But if they sign off something written with lots of “hereafter” and “parties of the second part” language they are more likely to accept that they have entered into a Legally Binding Deal which they are Bound to Honour.
This difference shouldn’t affect the ultimate outcome of any subsequent contractual litigation, but litigation is to be avoided if possible.
I deal with the big end of town which tends to be reasonably legally sophisticated. But when dealing with the Average Joe, some verbal theatre may well serve a purpose.
Hmm…these shops. Do you mean auto body shops or machine shops or workshops or places of purveyance of sundry goods? Or maybe you mean to Photoshop some graphics?
We need clarity here: are you being taken to these shops in the passive sense or required to go in the active sense? How will you go? Is your “going” immediate or temporally conditional on some future event?
Sheesh. Just stay at home and let SWMBOB (She Who Must Be Obeyed) look after it.
Well no. Most contracts are signed between people who have goodwill towards each other. They may even be acquaintances or friends. Business thrives on good relationships.
However humans are infinitely flexible, unpredictable and make unspoken assumptions.
We disagree. People fall out. People also forget details that may be essential to one person but uninteresting to the other. If no effort is made to write it all down at the beginning then there is a risk of later unpleasantness.
IANAL, but I work with them on occasion. IMHO, most of the language in contracts is necessary (in the sense that it might matter) and would still be there if the contract was translated into some kind of rigorous mathematical code. One example is the language about ‘written notice’ in the original example. All the detail does indeed make it hard to read, but no way around it if you want a good contract.
Another chunk is useful legal vocabulary, sort of intentionally different from everyday language to ensure that everybody knows exactly what that word or phrase means, as opposed to everyday language which can be less precise.
And finally, IMHO, about 5-10% of the obfuscation is just lawyers (mostly unconsciously) trying to sound impressive and lawyerly. Nice to hear that current legal education stresses plain language; I need to find some brand-new lawyers and see what their writing is like.
IANAL, however, I used to watch Happy Days. In one episode, the Mafia tried to take over Arnold’s. They insisted the owner sign a contract which said, in its entirety: “Henceforth, this joint is ours.” They said their lawyer had written it for them.
“You needed a lawyer for that?”
“He put in the ‘Henceforth’”.
I was involved in a contract dispute that involved a contract that was written in “plain English”. Here’s part of the contract:
Company A (where I worked) thought this meant “We pay $105,000 per month until August and then renegotiate. Any further payments would only be made with a new agreement in place.” Company B thought it meant “They’ll pay us $105,000 per month until a new agreement is in place or the payments total $2.5 million.” Company B won in court. I believe the judge’s reasoning was that the benefit to Company A wouldn’t cease at the end of August so they couldn’t unilaterally stop paying Company B for that benefit. I agreed with the judge. When the dispute arose our management kept insisting that we had an ironclad contract and we would prevail in court. I asked to read the contract. As soon as I read this section (it’s section 1, so I didn’t have to read much) I knew that we would lose and I found a new job immediately.
The problem with this passage in not that it is written in plain English, the problem is that it is poorly written plain English.
The phrase “up to” is ambiguous: it could mean either up to a minimum of $2.5 million or up to a maximum of $2.5 million. IOW Company A must either pay at least $2.5 million total or it need not pay more what it agreed to pay through August.
The term “other arrangements” is also a sure source of confusion. Each arrangement should be separately identified, or, if all arrangements are meant then the word “all” should be used.
I am curious- how might legalese be an improvement over my suggestions above? Can provide us here with a better rendering in legalese?
It sounds like Company A was just taking advantage of a poorly written contract to try to pull a fast one.
Again: how might legalese be an improvement over my suggestions above? Can you provide us here with a better rendering in legalese?
Many, many years ago, I fell under the impression that a contract had to be written as a single sentence. While under that impression, I had occasion to write a couple of contracts involving release of rights to personal images, as in photographic model releases. They are models of hilarity, including the rather brusque phrase, that, in case of disagreement, I would “give you back your fucking money.”
I’ve always kind of hoped it would be brought in front of a judge…
Reminds me of the fabled People’s Republic of China’s version of our Miranda Warning: “You can scream as loud as you want. We don’t mind. We have earplugs.”
At risk of sounding hoity toity, as far as legalese goes the quoted clause is actually pretty straightforward…
Anyway, right off the bat I can see few things that is substantively different.
Period of 3 years flat in the shorter version versus 3 years since the receipt of confidential information.
The shorter version doesn’t address sharing information with permission. So what you say? Let’s say a few months down the line after the shorter contract, the parties agree that one party can sell or share a piece of confidential information. Then the party that gave permission regrets it or forgets it or whatever then points to the original agreement that doesn’t address the issue so there is no clear way of resolving the problem.
I think this was sort of addressed by someone else but the word ‘reveal’ in the shorter contract is open for abuse. One party could be like “i thought you meant reveal to the public, not sell it to a private party hur hur hur”. It might sound silly, but without a merger clause (another fun clause full of mumbo jumbo limiting the agreement to what’s on paper on that particular contract) they could try to present contextual evidence that would show that their interpretation was legit.
“considered confidential” can be too broad also. I might not have told you it’s confidential but hey, wasn’t it obvious I “considered” it such?
No one wants to litigate but sometimes people change their minds, forget, want to con you or there is a genuine difference in interpretation and you don’t want an oversight biting you in the ass and cost you millions, if it’s a large scale transaction. So you think of every possible scenario that may affect or be affected by the agreement and acknowledge it. Or recycle a comprehensive contract that was used for the same or similar transaction which is what people in the majority of cases. A lot of times a long ass boilerplate contract, despite being dozens of pages, still doesn’t cover a particular situation that comes to pass and the real fun begins.
We were paying to use the other company’s trademarks. We didn’t stop using them but we stopped paying for them pending a new contract. The judge didn’t have to worry about exactly what the contract said - we were infringing their trademarks so the contract no longer mattered.
As I’ve said before, Legalese is a programming language. It’s full of very specific keywords and terms of art that are well-defined for the system it’s meant for–the courts–but which are confusing to people who mistake it for English. There’s also a tremendous amount of exception handling code thrown in because the hardware it runs on is frequently flaky and the data inputs are often pathological.
Contracts are written in Legalese because they have to be able to run on CourtOS, which is the native platform for the debugging tools.
Understand this: legal documents are mostly boilerplate (that is, language that has already been written and included in a hundred standard form contracts before.) Let’s say you are a lawyer drawing up a release of a personal injury claim, a simple type of contract. The causes of action that might arise out of a motor vehicle accident in StateWhereYouPractice are pretty much fixed. So, you take the form release you (or more likely, your boss or even his boss) drafted 20 years ago, which you occasionally supplement to reflect any case law updates, and you modify it to fit any unusual terms of the present case. And you’re done.
Maybe once in a while the other party asks for X language to be deleted or Y language added, but that’s uncommon. 99% of contracts are drafted entirely by one party.
I’ve worked with a lot of lawyers professionally. You are correct that they all assume that the other party, if not “dishonest” per se, will at the very least take advantage of loopholes or ambiguity.
But thinking that lawyers intentionally make contracts confusing to the layman as part of some conspiracy to drum up work is absurd and bizarre.
I’d be interested in the comments of other (US) lawyers, but as I said above, this isn’t really right in one significant respect, in my experience. Keywords and terms of art just aren’t an important part of the reason why legal drafting is opaque and long winded. I’d say 99% of the words used are just everyday words, used to mean exactly what they mean in their everyday usage. There are some terms of art, but that just isn’t the main problem.
Don’t get me wrong: I love your analogy overall. It’s both somewhat instructive and very funny and with a bit of work could be a real masterpiece. Earlier in the thread I was thinking of using the software analogy myself but decided against it in part because I don’t have the coding background that would enable me to make it sound good.
You are very, very right about the flaky hardware, the need for extensive exception handling code and the pathological inputs. But you overemphasise the keywords/terms of art thing.
Legalese commands tend to have numerous switches, which totally alter the effect of the commands. LaypersonOS - a flaky system at the best of times - allows end users to choose at the individual user level the default effect of commands used without all appropriate switches. This leads to clashes where different users use different OS settings to get different outputs from the same code despite using the same inputs.
The code can be run through CourtDeBug, which will remove the ambiguity by simply writing into the code its own choice of switches, where those switches were missing. The end result is code with consistent output, but which output may, or may not, reflect the intentions of the coders who wrote the software in the first place.
Thank you. Not only absurd and bizarre but ignorant. Litigators and commercial lawyers tend not to overlap and it is silly to think that commercial lawyers write defective ambigous contracts:
(a) that will trash their relationship with their own clients - who will not appreciate getting involved in costly litigation due to their lawyer’s poor drafting;
(b) in order to create litigation for the benefit of lawyers* other than themselves*.
Sorry but collegiality does not extend that far!
Furthermore, ralph124c’s use of a marriage contract as an example of a long, verbose and ambiguous contract for which lawyers are responsible is beyond bizarre. Lawyers seldom have anything to do with marriage contracts, which are a product of religion and culture not lawyers. Heck, if lawyers wrote marriage contracts they would far more businesslike and less ambiguous (if rather unromantic).
