Someone Offers a Defense of Brain-Dead Contract Archaisms

Early this year I wrote about attempts to argue that changing traditional contract legalese is a bad idea, either because traditional legalese works (see this post) or because it might work (see this post).

Well, I’ve encountered another article that makes the same sort of argument. In Contracts Part III: The Role of Legalese in Contract Drafting (here), published in something called Latin Business Today, the author offers the following defense of traditional legalese:

Provisions that turn up in almost all contracts, such as Severability Provisions, Assignment and Succession Provisions, Integration Clauses, Modification and Waiver Clauses, Counterparts Provisions, Governing Law and Dispute Resolution Clauses, generally, employ language that would be familiar to a 19th Century draftsman, the upshot being that the language is well established in legal understanding and may even enjoy support in legal precedents.

Yeah, well. Regarding the “successors and assigns” provision, see this article for my explanation why it’s a provision without a purpose. Regarding the other provisions, arguing that one shouldn’t change traditional language because it’s well-established is a recipe for never changing anything, no matter how dysfunctional.

But more interesting is the author’s argument about witless contract archaisms:

Persons likely to embellish or even lie about their narration of events are much more likely to convey a narrative that is more spare and truthful in a legal proceeding where the formality is intended to impress upon participants the consequences of violating a sworn oath.

In defense of formality in legal writing, the same can be said for commencing a contract with recitals such as “Whereas, Mr. Smith owns a pair of pliers, etc.

The idea is to impress upon signatories that they are entering into a legally binding relationship in which society, itself, holds an important interest. In other words, the subtext of formal language used in contact drafting is “Watch out”; you are doing something very serious here, so pay attention.”

Gawd help us. Occasionally someone has offered me this defense, but I’ve never encountered it in print. It’s preposterous. If what’s at stake in a transaction, together with the time and expense involved in putting it together, aren’t enough to convince someone to take a transaction seriously, I find it hard to believe that witless archaisms will cause them to sit up and pay attention.

If anything, witnesseth, whereas, and now therefore, not to mention the noxious stew that is traditional contract legalese considered generally, are more likely to alienate readers, leading them to disdain the entire process or assume that it’s best left to lawyers.

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.