I recently saw the following on Twitter:
Do you think there are legalisms (terms of art) that cannot be replaced with plain language? We’re making a list: http://t.co/Hd0ZLidJK7
— Cheryl Stephens (@CherylStephens) June 20, 2013
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.
Joint and several!
Nice try but … that’s not a correct answer! *cues trombone fail sound effect* Presumably you didn’t heed my recommendation, otherwise you would have seen the following post: https://www.adamsdrafting.com/exploring-joint-and-several/.
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:
waive
collateral
default/event of default
counterpart
fair value/fair market value
reasonable/commercially reasonable
conflicts of law principles
mortgage
arbitrate
mediate
rescission
set-off/offset
subcontract
Andy.
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!
Regarding material, you might want to check out the MSCD chapter on the subject.
What about option contract, because it is not really a contract but an offer?
I’m not sure I’d call that a term of art. At least, it’s different from the other words and phrases discussed in this post.
Mutatis mutandis
You needs to get you a copy of MSCD! Chapter 13 discusses mutatis mutandis, and says the heck with it.
I’ll offer a candidate of my own: third-party beneficiary.
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*
Lease
Appurtanance
Curtilage — there has got to be a better word with the same legal content, but I haven’t found one
Right-of-Way
Easement
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…
Tenant
Landlord
Adverse Possession
Eminent Domain/Condemnation (eminent domain is better)
Abandonment
Trespass
Condominium (“strata title”, “sectional title”, and “commonhold” are no better)
….and in transportation….
Common Carrier