I recently saw the following on Twitter:
Do you think there are legalisms (terms of art) that cannot be replaced with plain language? We’re making a list: http://t.co/Hd0ZLidJK7
— Cheryl Stephens (@CherylStephens) June 20, 2013
It prompted me to think, Hey, that’s a great idea! Why don’t I ask my readers to help compile a list of contract terms of art that can’t be replaced by something simpler!
By way of background, here’s what MSCD says, at 1.7–1.10:
Contract language includes legal terms of art—words and phrases that have a specialized doctrinal meaning. They serve as shorthand for legal concepts, allowing those concepts to be articulated with a minimum of fuss.
Legal terms of art add complexity, but that can be difficult to avoid. Contracts are as complex as the transactions they embody, and many transactions are highly technical. Expressing that complexity usually requires specialized terminology. Attempting to purge contracts of that terminology can result in contracts that fail to articulate the intended meaning clearly and efficiently.
So, for example, it would be awkward to have to do without the term of art security interest for purposes of drafting a contract in which a party grants a security interest. Similarly, it likely would be awkward to draft a security agreement without using the noun perfection or the verb perfect, terms of art relating to security interests.
But a feature of traditional contract drafting is reliance on three kinds of flawed legal terms of art, namely those that are “misapplied,” those that are “improvised,” and those that are “top-heavy.”
MSCD goes on to discuss many terms of art that can be replaced: hypothecate, indemnify, allonge, attorn, hold harmless, best efforts, and so on.
I’d like to supplement my examples of terms of art that can’t be replaced. So bring them on! But I suggest that before you nominate a term of art, check MSCD or this blog to see whether I’ve had anything to say about it.
Thanks to Cheryl Stephens for providing the inspiration for this post. Because contract language is distinct from other kinds of legal writing, I thought it best to create my own list rather than seek to add to Cheryl’s list.