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.
10 thoughts on “Someone Offers a Defense of Brain-Dead Contract Archaisms”
Bad argument in the context of contracts, particularly when consumer laws push the drafter in the opposite direction.
Same argument is used when discussing wigs and gowns in court, and court architecture, as part of the drama of criminal courts – impressing on defendant and witnesses the seriousness of the proceedings. This may not resonate with US readers but is a factor in the UK and, I suspect, some other European countries.
I don’t think that’s what Professor Fuller meant when he talked about contract formalities….
If we really, really need formalities, let’s just stick with seals and recording. At least those carry some actual procedural hurdles and don’t require abuse of the English language.
I looked at the article, thinking that the name of the publication suggested the writer might be from Latin America, and therefore more heavily invested in the fusty and formal traditions that go with contracts in the civil law system (especially outside the major commercial centers of it) and discovered that the author is an American, but not a transactional specialist–he’s an immigration lawyer! Not the first source I’d turn to for wisdom in these matters.
Of course. But I nevertheless thought the article worth mentioning, simply because it demonstrates that there are those (expert or not) who buy into the notion that archaisms set an appropriate tone.
“[T]he protest against an exaggeration very often takes the form of an exaggeration in the opposite direction.” (Copleston)
The modern passion for informality — not a purely American thing — risks overlooking the value of ritual, even in language (’till death us do part’).
My point is not that every old locution is good, but that each must be examined critically, tossing the bad ones and keeping the good — as ‘hereby’ is put to good work in lead-ins, while the other ‘here’, ‘there’, and ‘where’ words are left at the kerb for the dustman.
We raise our right hands when we swear to tell the truth. It’s a formality, a ritual. No harm in it, and perhaps still some good.
Murky, eh? Must be the drink. Short version: (1) Traditional doesn’t necessarily mean dysfunctional; (2) Ritual has a place in contract language as elsewhere in the law. –Wright
“To have and to hold…”. Yes, English lit is a beautiful thing. And, yes back in the Blackstone day lawyers were paid by the letter and could set themselves apart by use of the accoutrements of the profession, to enhance its nobility, and public acceptance and therefore “enforceability” of its practices. So, I would not argue against the necessity of certain measures of mystique. But empty gestures toward pomp and circumstance are merely that. In the business/legal world what matters to our client or our mgmt. is drafting precision, timely delivering a product, and risk avoidance. I know what I get paid to do (which at one point in my career seemed to be spending half my time trying to understand quantum physics-esque complex British sentence construction). Further, what we do has become somewhat pedestrian due the sheer volume and velocity of business nowadays. I loathe to ascribe the word “commoditized” to this phenomenon because against that is the crusade which Mr. Adams is waging. That doesn’t mean after work I don’t mind reading a little Victorian literature. That’s not the point, however. Now a random but germane plug for my $.02 worth: use of the symbol “/” should be avoided because it is ambiguous in the Boolean sense, since it can be construed as either an or or an and.
I actually kind of miss the wax seals with my monogram on them from the 18th century. Adobe signatures just aren’t romantic. Kind of ambivalent on using high Middle English. I pictured myself wearing a tweed jacket and smoking a pipe after law school. Now I work from home and wear shorts and no shoes most of the time in Florida. :/
Could be worse: I could be a witless purveyor of noxious archaisms!