In the current edition of New York magazine, someone agitating about Facebook’s new terms of service is quoted as saying “No Latin! I’m not sure what forum non conveniens means, and I shouldn’t have to [know].”
As a general principle, No Latin! makes sense to me. I’ve found on the SEC’s EDGAR system contracts filed in the past year that contain one or more of the following Latinisms:
- ab initio
- bona fide
- de facto
- de jure
- de minimis
- de novo
- ex gratia
- ex parte
- ex post facto
- in personam
- in rem
- inter alia
- mala fide
- mutatis mutandis (see MSCD 12.195)
- pari passu (see comments)
- prima facie
- pro tanto
- quid pro quo
- qui tam
- res ipsa loquitur
Some Latinisms have become so ingrained that they can now be accepted as English—for example, pro rata and vice versa. I suggest that your contracts would be clearer if you were to dispense with the rest, including those in the above list. Instead of using jargon, express the intended meaning in standard English.
Excellent post and agreed 100%. We’ll build this into the next version of our correction software.
The only trouble is, where would you draw the line? For example, ‘ex ante’ and ‘ex post’ are used frequently by economists and understood within the discipline. Equally, I’d suggest that ‘de facto’ and ‘quid pro quo’ are used and understood outside of legal documents. It’s difficult to think of an obvious rule as to which phrases should always be switched and which only sometimes.
iEditor: For purposes of general writing, I see your point. Of course, for purposes of contract drafting, how economists and others use Latinisms has little or no bearing on contract language. Ken
I think the principle should be that a contract should be written in a way that can be easily understood by the people who are using it and who are subject to it, and so “No Latin” will usually be correct.
That principle does imply, of course, that where a Latin phrase is well understood by the people who are using and subject to the contract, there is no reason not to use it. For example, “pari passu” has a specific legal meaning when applied to share classes that can only be explained in English using considerably more words, so I am happy to use it in contracts where the parties know the phrase.
I would call this one a rule of thumb rather than a strict rule – but then I see most things in that way.
Art: I was initially of two minds about pari passu, but I still think there ought to be simpler alternatives.
Here’s the definition of pari passu offered in Black’s Law Dictionary: “Proportionally; at an equal pace; without preference (creditors of a bankrupt estate will receive distributions pari passu).” In the example offered in the definition, I’d use a simpler Latinism, pro rata.
Here’s an example of how pari passu is more usually used in contracts: Shares allotted upon the exercise of an Option will rank pari passu in all respects with the Shares in issue on the date of the exercise. Why not use equal instead of pari passu?
Ken
Ken – in the context of debt, UK case law indicates that “pari passu” refers to rights on a winding up (whether for creditors or shareholders) and not any other rights, which is why I find it useful. But looking at some more examples of usage, it seems that people tend to use it more loosely, so I am perhaps less certain than I was when I made my last post that a court wouldn’t “wrongly” decide otherwise!
Incidentally, in your example above I might be tempted (unless talking about a winding up) say “have the same rights” rather than or “rank equally in all respects”. “In all respects” implies that we are not talking about merely winding-ups, but if, for example, certain shares carry rights to receive information, does the word “rank” make any sense if we are trying to say that the option shares have that same right? Could the phrase be interpreted to only apply to rights where ranking is an issue?
I suppose one could simply translate forum inconveniens as inconvenient forum, or less literally as improper court or improper venue. But isn’t venue itself Latin?
Jack: I suspect venue was originally French. But more generally, note that Latin words are one thing, English words with Latin roots quite another. Ken
Ken, as usual I agree with you almost 100%, but not quite. Different contracts are drafted for different audiences and there is no reason that a complicated contract for a knowledgeable audience should eschew terms easily understood by the intended readers.
Consumer contracts should, of course, be drafted in plain English that an average person can understand. On the other hand, an agreement between a private equity firm and a portfolio company about a new round of capital is intended to be read by people who are familiar with the lingo.
Using words like pari passu, de minimis and quid pro quo in a consumer contract should be a no-no, but struggling to substitute “plain English” words for a Latin phrase that all of the intended readers of the contract will readily understand seems like an unnecessary exercise.
David: I don’t use the phrase “plain English”: people might think that it refers to making contracts comprehensible to consumers, a concept that’s irrelevant for purposes of business contracts. Instead, I use instead “standard English”: business contracts are often highly complex, but the English used to express those ideas should be the English of the average educated consumer. I discuss the distinction in this 2006 blog post.
Sure, plenty, or even most, lawyers know the Latinisms you refer to. But it would be rash to assume that all businesspeople do, and with each passing year fewer people understand them. Replacing them with standard English alternatives would be a simple matter.
Ken
Even in Mexico… a latin country.. latinisms are less used everyday… plain language is prefered… sometimes a court will use them but not that often…