Latinisms in Contracts

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.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.