Archaic Language in Modern Contracts: Plain Language vs. Legalese

When writing a contract, it is critical that each party is able to fully understand all of the expectations and obligations under the contract. The use of legalese inhibits comprehension and compliance.

“Upon such default, and at any time thereafter, Secured Party may declare the entire balance of the indebtedness secured hereby, plus any other sums owed hereunder, immediately due and payable without demand or notice, less any refund due.”

“If I break any of the promises in this document, you can demand that I immediately pay all that I owe.”

These two provisions say exactly the same thing. Which would you rather sign?

Legalese has long been the brunt of jokes and ire. There have been critics since the use of “traditional” language began. Miguel de Cervantes (1547 – 1616), most famous for Don Quixote, had this to say about legalese: “But do not give it to a lawyer’s clerk to write, for they use a legal hand that Satan himself will not understand”; and Thomas Jefferson implored his fellow lawyers to write in a manner that others could understand.

So why has the use of traditional language persevered throughout the centuries? The most fundamental reason is that lawyers prefer to continue the use of exclusive language. After all, the plain language movement can go nowhere without the cooperation of those writing the language meant to be plain. Also, it’s not called traditional for nothing. Like any other profession, traditions are handed down from one generation of lawyers to the next, and these traditions are often accepted as absolutes, particularly in a field that bases every decision on the decisions of the past.

And, cynical as it may sound, many lawyers see it as an issue of job security. After all, if all of us could read and write contracts by ourselves, it may reduce the amount of time (and money) spent consulting attorneys. By making the language inaccessible to the layperson, the legal profession ensures a certain mystique surrounding the language, necessary, according to some lawyers, to guarantee clarity. (Clarity? How clear did you feel after signing your mortgage or last car loan?)

There are a few requirements to make a contract legal and binding, but convoluted language is not one of them. The clearer a contract, the better. When writing licensing agreements, work-for-hire agreements, or other contracts, many small business owners and freelance designers fall into the legalese trap. One may think that it sounds more official or legal, when in reality it is possible that, when spewing forth hereunders, wherebys, forthwiths, and unidentifiable grammatical horrors, the contract writer is either leaving something vital out or unintentionally conveying rights to the other party.

Another complication in the translation of legalese to plain language is the simple (and frustrating) fact that some words mean one thing in everyday English, yet they mean something altogether different in terms of art, or legal language. Just one example of this is the word shall. The word shall is difficult to use correctly under the best of circumstances, as it is conditional on case and tense and is frequently confused with will. The result is that it is hardly used at all, and when one does hear it, it has a different connotation–it almost sounds undecided. It is interchangeable with must or should, which, obviously, are two very different words. “Company X should pay Designer Y for all time spent on the project” is not the same as “Company X must pay Designer Y for all time spent on the project.” In legal terms, shall always means must. And in legal contracts, one should use the word must if that is what is intended. Other legal terms exist only in the legal sphere and require a legal dictionary or expensive law school education to use or understand correctly. Better to simply say what is meant in terms that anyone could understand.

What matters when drawing up a contract is clarity. Clarity can be achieved best with common, plain language, generally and universally agreed upon and understood by any party to the agreement or to any body adjudicating the agreement.

In the event of conflict requiring legal intervention, the content and intent of a contract is determined by the “four corners” doctrine. Nothing but what is contained within the four corners of the paper the contract is written on will be considered. Conversely, and just as important, everything written on the paper will be considered. Therefore, it is critical that you say exactly what you mean to say in any contract that you write.

This also goes for any contract that you may sign, either in your personal or professional life. Never be content with the typical, “Oh that? That’s just a standard contract. Go ahead and sign at the bottom.” Examine each provision carefully, and, if you are unsure about the meaning, ask questions until you are satisfied. If necessary, take the contract to an attorney for review.

Here are a few pointers to keep in mind when writing a contract:

  • A contract is not an exercise in creative writing. Pick a word for something and use it consistently from beginning to end. This includes designer, work, website, seller, purchaser, or whatever. Yes, it makes for a boring read. It also prevents creative interpretation of the contract.
  • Use common, everyday language. Be sure the expectations and obligations of each party are clear and distinct. Though not a hard and fast rule, one can generally safely assume that shorter sentences are better. The legalese predilection of having multiple clauses and compounds in one sentence is confusing, at best.
  • Use conventional grammar and punctuation. There is a bit of legal lore about a man who was “hanged by a comma.” The statute upon which his treason charge rested needed to be interpreted based on whether or not treason was committable outside of the nation. After prolonged debate, the jurists dug out the original handwritten statute and determined that those few marks on the paper were indeed commas and subsequently found the man guilty. This being perhaps an extreme example, the point remains that it is important to correctly punctuate any contract to ensure correct interpretation.
  • Do not assume anything. Specifically say everything in the contract that needs to be said. At its most basic, this includes what each party is to do, what each party is not to do, and what happens if either party fails to do anything that was supposed to be done. Also include who owns what at any given point in the process. This is mainly a copyright issue. A graphic designer who contracts to create a logo for a business, for example, may wish to retain all rights to all samples provided to the company. Once the contract is completed and payment is made, the designer would transfer all rights to the company for the design ultimately selected and accepted as final. A designer would not want the company to have the rights to each of the original five ideas.
  • Be specific. “But I thought he meant …” does not hold up in court. Neither does, “when we talked about it before, we agreed to X.” Nothing but what is written on the signed contract matters.
  • Finally, have the contract reviewed by an attorney. The importance of this cannot be overstated. Consider what is at risk should your contract not withstand legal scrutiny, and it is clear that money spent on a lawyer is money well-spent. What is important to realize is that by writing clear, concise, plain language contracts, the time spent by the attorney to review them is greatly reduced, reducing your costs as well.

When writing contracts for small business or personal use, it is important to remember the whole point of a contract: to demonstrate agreement to any number of obligations. If these obligations are confusingly written, it is less likely that the other party will follow them, which defeats the whole purpose of the contract.

The bottom line is that plain language contracts are good for you and for your clients. Terms that are not subject to interpretation increase compliance, and when each party is crystal clear about his or her obligations under the contract, those obligations are more likely to be fulfilled. Finally, should the contract have to be interpreted in court, the court is better able to decide the case if the contract in question is clear and unambiguous.

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