This is the first of two columns about words of precision in contracts.
Nothing irritates ordinary people more than trying to understand form contracts. Form contracts tend to typify the traditional legal-writing style and its passive voice, buried verbs, and strangely used words and phrases. For non-lawyers, trying to digest form contracts is like trying to read a foreign language.
True, bad legal writing isn’t limited to form contracts. But the lawyers who draft them often are the worst peddlers—and staunchest defenders—of the traditional style. To defend their franchise, however, these lawyers often highlight one feature of their prose style that they say is beyond reproach: their use of words of precision.
But what exactly do lawyers mean when they refer to words of precision? And, as Jeremy Bentham mocked in 1843, is their claim that special old words make contracts precise nothing more than a “sham plea”? In the next two columns I’ll examine ten words of precision found in form contracts. You can judge for yourself.
Normal people use said as a verb, as in “Joe said that he bought groceries today.” But some lawyers use said in place of the, this, that, these, or those, as in “Landlord agrees to remove all debris from said [read the] premises before Tenant moves in.” This use of said comes from Middle English; it’s a close relative of the Old English word aforesaid, which roughly means above-stated or previously mentioned.
Even die-hard traditionalists must concede that the archaic use of said isn’t plain English. As Richard Wydick says in Plain English for Lawyers, “No lawyer in dinner table conversation says: ‘The green beans are excellent; please pass said green beans.’”
Wydick also gives this example of how said doesn’t add precision to a sentence describing an antitrust conspiracy: “The object of said conspiracy among said defendants was to fix said retail prices of said products in interstate commerce.” As Wydick explains, the saids give only the illusion of precision:
If only one conspiracy has been mentioned in the preceding material, we will not mistake this conspiracy for some other conspiracy, and said is unnecessary. If more than one conspiracy has been previously mentioned, said does not tell us which of the several is meant. The extra precision is thus illusory. If the were put in place of all the saids, the sentence would be no less precise and much less clumsy.
Non-lawyers use such to mean of that kind, that/this sort, or to begin a list of examples of a class of persons or things. In this sense, such requires a definite antecedent. A non-lawyer, for example, might say: “Joe’s grocery list included some of his favorite fruits such as apples, oranges, and grapes.” The antecedent here is favorite fruits.
But like said, some lawyers use such as a pointing word. A lawyer might write “Tenant agrees to pay $1,000 in rent each month. Landlord must receive such rent by the first day of each month.” Bryan Garner notes in Garner’s Dictionary of Legal Usage that H.W. Fowler labeled this use of such “illiterate.” That about says it all.
Deem comes from Old English, and few non-lawyers use it. To take the example of Joe and his grocery shopping above, you probably won’t hear him say that he “deems his grocery store to be the best store in town.” Some lawyers, though, use deem to create a legal fiction, as in “the parties deem that they entered into this contract on January 1, 2014.” This usage is minimally defensible.
But as Bryan Garner notes in Garner’s Modern American Usage, deem “is a formal word that imparts the flavor of archaism. It frequently displaces a more down-to-earth term such as consider, think, or judge.” Generally speaking, no precision is gained from using deem in its archaic sense. No judge will penalize a lawyer who uses the parties consider or the parties agree in its place.
4. That certain.
Some lawyers use that certain to refer to something outside the contract they’re drafting. For example, when a company buys a competitor it’s common for the company to enter into an employment agreement with the competitor’s key executive. To refer to that employment agreement in the purchase agreement, the company’s lawyer might write “As provided for in that certain employment agreement dated December 1, 2013, Company will employ [key executive] until December 31, 2013.”
But that certain doesn’t make the reference to the employment agreement more precise. If there’s only one employment agreement, the drafter won’t create ambiguity by referring to it as the employment agreement. And if there are employment agreements for several key executives, doesn’t precision require the drafter to distinguish between each agreement by stating its full name and date? That certain, then, is either unnecessary or possibly ambiguous.
David Mellinkoff writes in The Language of the Law that herein “is an Old English word of nonlegal origin. It combined older Old English here and the still older in, which has been a word of loose use for more than a millennium.” In The Fundamentals of Legal Drafting, Reed Dickerson—a leading authority on contract drafting—calls herein “pure gobbledygook.” Many other authorities concur.
Beyond being pure legalese, herein also can create ambiguity. Mellinkoff explains: Herein “means in-this well enough, but in-this-what? This sentence, this paragraph, this contract, this statute? The exact point of reference remains obscure, and depends completely on ‘context,’ which is another way of saying that your writing is going to be ‘interpreted.’”
Consider this final example, which illustrates the trouble caused by herein: “Subject to the conditions set forth herein, Landlord agrees to rent the apartment to Tenant for one year beginning on January 1, 2013.” Assume that the lease is 20-pages long and has 40 numbered paragraphs and two addendums. Does herein refer to the conditions of the paragraph stating the lease term? Does it refer to the conditions of the entire 20-page lease? How about the two addendums to the lease? Do their conditions also count as herein?
The better practice is for the drafter to nix the herein and specify what conditions she is referring to: in this paragraph, in this lease agreement, or something else that makes the drafter’s reference to the limiting conditions clear. After all, it’s precision we’re seeking, right?
This column is adapted from an article originally published in the Minnesota Lawyer on August 5, 2013.