Yesterday I did this tweet, prompted by my rooting around in hotel agreements for LegalSifter:
I love it that in leases, "quiet enjoyment" has nothing to do with quiet enjoyment and instead relates to possession not being disturbed by superior title.
I love it even more that in hotel agreements, "quiet enjoyment" refers to guests being able to enjoy their rooms in quiet.
— Ken Adams (@AdamsDrafting) April 6, 2019
That tweet was necessarily a little glib, but I stand by it. The main point is that when used as a section heading in hotel agreements, quiet enjoyment is given a narrow, literal-minded meaning as compared to its meaning for purposes of leases.
That made me think of termination for convenience. It’s a term of art used in government contracts to express that the government entity, but not the other party, may terminate without a default. But the term has migrated into commercial contracts, where it’s used unhelpfully to mean termination for any reason. (See this 2007 post.)
And that made me think of attorn. It’s an unnecessarily legalistic term of art used in leases, but Canadians also use it in jurisdiction provisions instead of consent or submit. (See this 2012 post.)
All three examples demonstrate that the meaning of a term of art can morph over time. I’d like to hear of other examples.
This just serves as a reminder that terms of art are slippery things. If you have the option, forego terms of art in favor of something clearer.
The more control I have over the forms I work day-to-day, the more grateful I am for how many issues, like false terms of art, plain drafting basically eliminates.
If you think you need a term of art, place it in scare quotes, identify it as a legal term of art in the contract text, and reference the authority providing meaning. If you can’t find that authority, or it doesn’t say what you expect, it’s not a term of art, and you’re back to saying what you mean as clearly as you can. Which often leads to a realization that you don’t really know what you mean, and are leaning on a word whose usage you know is correct, but whose meaning doesn’t offer any real predictability value, other than getting by others who share that sense of usage without objection.
I think that’s why it’s surprisingly hard to get seemingly good lawyers to scratch the surface even a little bit.
As I tell my 12yo, “Most people would rather feel right than be right.” I read my dotcom-era contracts with shame….