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

RELATED POSTS

Data Privacy Rights: An Evolving Area That Cannot Be Ignored

Data Privacy Rights: An Evolving Area That Cannot Be Ignored

When it comes to small business customer data, be aware of privacy policies Rinaldo Sells His Own Fashion Line Over the Internet Rinaldo sells his own fashion line over the internet. His company, Best Fashion, has grown over the years to generate close to $10 million...

Attorney-Client Privilege Part III: Protecting Your Legal Advice

Attorney-Client Privilege Part III: Protecting Your Legal Advice

How to Protect Against the Disclosure of Legal Advice in a Corporate Setting: The Bane of Mixed Message Communications In this  article, I will focus on the problem posed by mixed message communications. These are communications that include both legal and business...

Understanding the Attorney-Client Privilege [Part 2]

Understanding the Attorney-Client Privilege [Part 2]

Does the Attorney -Client Privilege Cover Communications between Company Counsel and the Company’s Employees? In our last article, Jose was puzzling out a litigation that had been initiated against his company by a former employee. We discussed whether or not certain...

Polls

Sign Up for the Latin Biz Today Newsletter

Video Gallery

PR Newswire

Money

Talent/HR

Legal

Marketing

Strategy

Another Latina Small Business Recipe for Success

Another Latina Small Business Recipe for Success

Lilia Rojas Latina entrepreneur and owner of La Flor de Jalisco bakery has achieved success   Lilia Rojas takes an almost literal approach to running her business: the positive meaning of having her cake and eating it to. Perhaps that’s why her 14-year-old...

Fashion

Food

Music

Sports

Innovation

Work, Life & Culture

Culture

Health & Fitness

Travel & Destinations

Personal Blogs

Pin It on Pinterest