Terms of Art That Can’t Be Replaced

I recently saw the following on Twitter:

It prompted me to think, Hey, that’s a great idea! Why don’t I ask my readers to help compile a list of contract terms of art that can’t be replaced by something simpler!

By way of background, here’s what MSCD says, at 1.7–1.10:

Contract language includes legal terms of art—words and phrases that have a specialized doctrinal meaning. They serve as shorthand for legal concepts, allowing those concepts to be articulated with a minimum of fuss.

Legal terms of art add complexity, but that can be difficult to avoid. Contracts are as complex as the transactions they embody, and many transactions are highly technical. Expressing that complexity usually requires specialized terminology. Attempting to purge contracts of that terminology can result in contracts that fail to articulate the intended meaning clearly and efficiently.

So, for example, it would be awkward to have to do without the term of art security interest for purposes of drafting a contract in which a party grants a security interest. Similarly, it likely would be awkward to draft a security agreement without using the noun perfection or the verb perfect, terms of art relating to security interests.

But a feature of traditional contract drafting is reliance on three kinds of flawed legal terms of art, namely those that are “misapplied,” those that are “improvised,” and those that are “top-heavy.”

MSCD goes on to discuss many terms of art that can be replaced: hypothecate, indemnify, allonge, attorn, hold harmless, best efforts, and so on.

I’d like to supplement my examples of terms of art that can’t be replaced. So bring them on! But I suggest that before you nominate a term of art, check MSCD or this blog to see whether I’ve had anything to say about it.

Thanks to Cheryl Stephens for providing the inspiration for this post. Because contract language is distinct from other kinds of legal writing, I thought it best to create my own list rather than seek to add to Cheryl’s list.

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.

12 thoughts on “Terms of Art That Can’t Be Replaced”

  1. I immediately thought of subordinate and subrogate. Then I thought of all the legalisms that we might be able to replace with plainer language, but not easily, for example:
    default/event of default
    fair value/fair market value
    reasonable/commercially reasonable
    conflicts of law principles

    • Thanks! Your list raises the question just what a term of art is. I’d be inclined to say that mortgage is so broadly used that if it’s a term of art, it doesn’t have the level of obscurity I was looking for. Same with subcontract, waive, and perhaps collateral.

      I suggest that reasonable and fair value clearly aren’t terms of art.

      I’ll ponder the others at leisure.

      • I would argue for the broader definition of “term of art” as having a specific meaning in a legal context.” Thus, say, “joint and several” and “represents and warrants” and “indemnifies” are all terms of art (even though you’ve argued against their use). “Fair market value” without more is usually (always?) construed as the price that would result between a willing buyer and willing seller, neither under compulsion to contract, so I think it really is a term of art in that people use it as shorthand for that definition (knowingly or not).
        Then there is a whole class of terms that, like it or not, are terms of art as they have been memorialized in statutes–especially, say, UCC Article 9 terms used in a security agreement.
        One term I should have added to my list is “material”–the term everyone thinks they know the meaning of, they just can’t agree on what it is!

  2. Real estate is full of this stuff.

    Starting with “Real Estate”.

    Fixture — and it’s a terrible word, since it has an ordinary meaning too
    Fee simple estate — this is one which isn’t used *enough*
    Curtilage — there has got to be a better word with the same legal content, but I haven’t found one

    Covenant Running With the Land
    Equitable Servitude — there has got to be a better term, but until the law itself is reformed to merge these with Covenants Running with the Land…
    Adverse Possession
    Eminent Domain/Condemnation (eminent domain is better)
    Condominium (“strata title”, “sectional title”, and “commonhold” are no better)

    ….and in transportation….

    Common Carrier


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