Contracts Part III: The Role of Legalese in Contract Drafting

small business contract components

Legalese contract language can be off-putting but it serves to crystallize its contents.

 

Editor's note: This is part three of the contract series Here are part 1 Small Business Contracts Part I: A Different Perspective and part 2 Contracts Part II: Laying the Groundwork respectively.

Every person who has been required to review a draft contract is immediately confronted with having to construe legal mumbo jumbo, complete with “therefors” (to be distinguished from the more common “therefore”) and “whereases”, “theretoes” and sometimes rather lengthy passages of gobbledygook. 

For the many of us who advocate that contract language should be clear and concise, there is an ongoing battle against archaic language that creeps in, but why is it still around?

Here are four key components of a contract:

1. Formality Has its Psychological Uses

It should be an interesting fact to readers that engaging with legal matters implicates a level of formality that does not exist in most other areas of public or private life.

 In a court of law, judges wear robes and are addressed—Your Honor.  Lawyers are expected to dress formally; when the judge walks in, the gallery stands.

The trappings of formality may seem out of place in a culture suffused with informality but in a land governed by laws, legal matters command weighty consideration.

Legal formalities also carry with them a certain element of intimidation.

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.”

2. Sometimes Legalese is More Precise

One of the problems besetting everyday language is that it has become increasingly imprecise.

By its very nature drafting legal documents is an exercise in precision, the idea being that it must always remain clear to the reader what the writer is referring to. 

For example, it is common to see such phrases as “as defined in Section 2, hereof” or “the documents submitted along with the accompanying petition and exhibits attached thereto.”

The point of this archaic phraseology is to define a reference, i.e. instead of having to clarify that “it is section 2 of this contract” one uses section 2 hereof (meaning, “of this contract”).

Similarly, “thereto” informs the reader that the exhibits are attached to the petition—not to the contract.

The “therefor” in legalese does not mean “therefore” as in the consequences of an action but “for that thing or action,” i.e. 

In exchange for painting Bill’s House the painter received $20.00 “therefor”, instead of the longer construction, i.e. $20 for painting the house”.

Next- #3 Familiarity May Breed Contempt and #4 Clarity

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About the author

Robert Goodman

Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group. 

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