effective
draftsmanship
by Roderick Ramage, solicitor,
www.law-office.co.uk
first published in New Law Journal
(newlaw.journal@lexisnexis.co.uk) from 17 December 2004 to 8 April 2005
DISCLAIMER
This article is not advice to any person and may not be taken as a
definitive statement of the law in general or in any particular case. The
author does not accept any responsibility for anything that any person does or
does not do as a result of reading it.
These articles were published as a
series in New Law Journal as follows:
|
1st |
17 Dec 2004 |
the dangers of simplistic
language – how to write a clear, clear and effective clause |
|
2nd |
7 Jany 2005 |
why bother? – the four principal
elements of a legal sentence – the proper use of “shall” and “will” |
|
3rd |
14 Jany 2005 |
analysing a complex clause and
discouraging proviso – the dangers of “thereto, the dreaded shorthand |
|
4th |
4 Feb 2005 |
back to the grammar school – some
hints and rules of thumb – translating legalese into plain English |
|
5th |
8 April 2005 |
how the courts interpret documents
and acts of Parliament |
article 1 (17 December 2004)
Although there are still those who would
question the principle, I take it as axiomatic that it is desirable that plain
intelligible English is preferable to traditional legalese and therefore will
attempt here not to justify its use but instead to offer some guidance how to
achieve it. There is sometimes a
misconception that simpler language is necessarily better than complex
language, and the eager convert who rushes in with reformed wording can fall
into the trap of beguiling but misleading simplicity. In this and the following issues I will
describe what can go wrong if a naïve attempt is made to write a legal
documents in plain English, and then describe some basic principles of good
drafting, give some drafting hints and finish with an analysis of the legal
sentence
Before starting to discuss what
drafting is about, I want to illustrate some
pitfalls of misleading simplicity with an example of typical and
familiar legalese - horribly familiar.
If the rent hereinbefore
reserved or any part thereof shall at any time be in arrear and unpaid for
twenty one days after the same shall have become due (whether formally demanded
or not) ... it shall be lawful for the Landlord ... to re-enter upon the
demised premises or any part thereof in the name of the whole and thereupon
this demise shall absolutely determine.
(64 words)
Years ago Rugby Borough Council
thought that these words were all too horrible and, being converted to the cause
of plain English, removed them in their entirety and replaced them with the
following simpler and plainer words.
You must pay your rent
promptly. If you do not, then after
three weeks the Council will have the right to take back the Unit from
you. (27 words)
This is very neat, but what does it
mean? Does it work? The answer to the first question is "Not
much" and the answer to the second similarly is "Not very well". Let us see why.
When is the Council entitled to take
back the Unit? Easy, after three weeks,
as the clause says. Three weeks after
what? When do the three weeks
start? What must happen to start the
three weeks running? Well, I just do not
know, but I do know what it does not mean.
It does not mean three weeks after the rent is paid promptly: that at
least is plain from the words "If you do not".
The "If you do not" words
are part of a condition on which the Council may take the Unit back, so let us
use them to lead us to Rugby Borough Council's meaning. My obligation is clearly to pay the rent
promptly. The condition is not “paying
it promptly”. If I pay it late, I have
not paid it promptly, and that is so even if I pay it only one day late. Therefore, according to Rugby Council’s
wording, three weeks after I have paid late, even only one day late, the
Council can take the Unit back from me.
If I pay the rent one day late, I have not paid it promptly, so the
"If you do not" condition has already come into effect.
My guess is that that is not what
the Rugby Borough Council really intended.
It probably intended that if the rent is three weeks in arrear it would
become entitled to take the Unit back.
At worst the clause has an unintended meaning, and at best it is
ambiguous.
Now suppose that Rugby Borough
Council overcomes that hurdle and satisfies the court that the clause means
that it may forfeit the tenancy by re-entering the Unit, sorry take it back,
when the rent is three weeks in arrears, is it then entitled to recover
it? Probably not, unless the Council had
complied with the common law obligation, if less than half the year's rent was
in arrear, to demand the rent on the premises, at the front door, between
sunrise and sunset. The old clause
relieved the landlord of that obligation by the words "whether formally
demanded or not". The Rugby Borough
draftsman probably, neither understanding the significance of those words nor
liked them (as an empty archaic formula), and so simply omitted them.
The lessons to be drawn from the
Rugby Borough Council example are that the draftsman has broken three
fundamental rules, which are:
1
you must understand what you wish to
achieve;
2
you must know the law; and
3
you must use words which express
unambiguously what you wish to achieve.
First, what does the Rugby BC clause
seek to achieve? This is speculation,
but it seems to me that what is written is intended to be a forfeiture clause,
but it starts by doing something different.
It starts by setting out "Your" (ie the tenant's) obligation
to pay the rent promptly. This may be only
a device to set the scene for the main purpose of the clause, but it looks like
a legal obligation. So we have a clause
which appears to try to do two things.
Apart from a risk of needless complexity, doing this can lead to
uncertainty what is the purpose of main purpose of the clause. The more I look at it the less sure I become
about it, so let's leave it until I come to the words used.
As we have already seen, the Rugby
draftsman was unaware of the common law obligation to make a formal demand for
rent. My guess is that he is also
unaware just what is the legal consequence of operating this clause. I assume that he intends to forfeit the
tenancy, but is conceivable that Rugby Borough Council wanted some other remedy
which entitles it to resume possession temporarily, without going so far as to
terminate the tenancy. Let us go on to
the words used.
The first sentence is I think as
good as anyone can write, but I would like to know whether it duplicates any other
clause for the payment of rent. The
troubles here are twofold. I have
already talked about the "three weeks" point. The second trouble is to be found in the
words "take the Unit back from you".
In a well meant attempt to use everyday language the draftsman has lost
the certainty that he expressed if he had chosen words which reflect his
intention. He must as least say that the
tenancy will be terminated. Taking the
Unit back is not the legal consequence of failure to pay the rent promptly: it
is merely the probable action that Rugby Borough Council will or may take on or
after the legal consequence. Look at the
legal analysis as a series of steps like this:
1 condition - failure to pay the
rent promptly;
2 legal
consequence - forfeiture of the tenancy;
and
3 practical
result - Unit taken back.
Well, so much for trying to make
sense of the Rugby BC attempt at plain English.
I now turn to another approach to the same problem. The Law Society published its Business Lease
in the Law Society Gazette of 26 June 1991 and the forfeiture clause was as
follows. The current edition is
substantially the same.
This
lease comes to an end if the Landlord forfeits it by entering any part of the
Property, which the Landlord is entitled to do whenever:
(a) payment
of any rent is fourteen days overdue, even if it was not formally demanded (41 words)
Here we have all the essentials
which appear in the horrible example, with nothing omitted, but expressed in
words which are an object lesson in clarity.
Just to emphasise the point I have
set the horrible example out below, for comparison with the Law Society clause,
to show how a step by step process can effect the
transition from horrible to clarity.
In step 1 the words in square
brackets are deleted and the words in bold are added and in step 2 the original
clause comes out as clean, clear and effective as the Law Society example and
only one word longer.
If the rent [hereinbefore reserved] or
any part [there]of it [shall
at any time be] is in arrear [and
unpaid] for twenty one days [after the same shall have become due]
(whether formally demanded or not) ... it shall be lawful for the Landlord ...
to re-enter [upon] the [demised premises] property or any part [there] of it [in the name of the whole] and [thereupon] then this [demise] tenancy shall [absolutely determine]
come to an end.
If the rent or any part of
it is in arrear for twenty one days (whether formally demanded or not) ... it
shall be lawful for the Landlord ... to re-enter the Property or any part of it
and then this tenancy shall come to an end.
(44 words)
|
hereinbefore
reserved |
[superfluous] |
|
thereof |
of it |
|
at any time |
[superfluous] |
|
shall be |
is |
|
and unpaid |
[superfluous - repetition] |
|
after the same shall have become
due |
[superfluous] |
|
upon |
[superfluous] |
|
demised premises |
Property |
|
thereof |
of it |
|
in the name of the whole |
[superfluous] |
|
thereupon |
then |
|
demise |
tenancy |
|
absolutely determine |
come to an end. |
article 2 (7 Jany 2005)
In the first part of this series I
wrote about the risks of an enthusiastic but careless adoption of plain
English. Now I turn to the broad subject
of draftsmanship. It is fundamental to
the work of a lawyer yet it is an almost untaught skill. The lawyer, as much as a poet, is a
wordsmith, but with a different objective.
The lawyer's words are his or her tools.
From now, with regret that we have no all embracing third person
singular pronoun, feeling that “he or she” overloads the text, “one” if used
excessively tends to pomposity and suffering a revulsion against “their” as a
singular pronoun, except when so used by the poets (in particular Sir Charles
Sedley, and perhaps Wendy Cope), I shall from now on write “he”, “his” and
“him”, but in each case mean “he or she” and so on. [Update 21/02/08: see article “He, she, yo!” for a
possible solution to this problem.]
The lawyer’s job is either putting
into words what people wish or intend or interpreting other people’s words to
ascertain what they mean. The lawyer's
words are his tools and his objectives are certainty and clarity, except on the
occasions when his client wishes to use obfuscatory
language to conceal his true purpose.
The draftsman’s method is first to ascertain the subject matter, what is
to be achieved and the relevant law, and then to express his client’s intention
in words. This is the same in the public
sector, in which legislation or other public regulations affects whole
population or part of it, as it is in the private sector, in which an agreement
may affect as few as one or two persons.
There are just three things, three legal actions for want of a better
expression, that the law can do:
1
to command (to impose an obligation
on someone to do something);
2
to permit (to give a discretion or power to someone to do or refrain from
doing something); and
3
to forbid (to prohibit somebody from
doing something).
These three on their own are however
insufficient to express the legal action, in any but the simplest cases. “No Smoking” in a railway carriage window or
“No Fishing” on a post by a river or lakeside are clear and effective legal
expressions, but mostly the requirements for the legal action are more complex
and need to be placed in their context.
First one must ask “Who?”, who is the subject of the legal action (ie
the person to whom the legal action intended to apply)? Secondly one must ask when and in what
circumstances does the legal action apply?
This involves two elements, the general circumstances in which it
applies and any conditions which are to be satisfied before it applies. Thus we have four principle elements in any
legal sentence:
1
the legal
subject (the person to whom the legal action applies);
2
legal action (the obligation,
discretion or prohibition);
3
the case (or the circumstance in
which the legal action applies); and
4
the condition (what must be done for
the legal action to arise).
Here are some elementary examples to
illustrate the parts of a legal sentence.
example 1a
Where the Buyer is in breach of the Contract and the Seller has
served on him a notice requiring him to remedy the breach the Buyer shall
comply with the notice.
example 1b,
in which the legal sentence is underlined and my explanation of the parts is in
parenthesis and italics.
Where the Buyer is in breach of the Contract
(the case ie the circumstances in which the condition can apply) and
the Seller has served on him a notice requiring him to remedy the breach (the
condition has been satisfied before the legal action takes effect) the
Buyer (the legal subject) shall comply with the notice
(the legal action).
example 2a in
which an additional condition is added
Where
the Buyer is in breach of the Contract, and the Seller has served on him notice
requiring him to remedy the breach, and the Buyer has failed to comply with the
notice within fourteen days from the date of its service, the Seller may
terminate the Contract.
Here there are three differences
from example 1. There is an extra
condition (and the Buyer has failed to comply with the notice within
fourteen days from the date of its service), the legal subject is a
different person and the legal action, using the word “may” instead of “shall”
is a right or discretion and not an obligation.
Although by the standards of much traditional drafting this is still a
relatively simple sentence, it is already long enough and sufficiently complex
that its structure is not immediately apparent through the words, so I restate
it as example 2b, altering not the words but the layout in which the legal
subject and action stand out from the case and conditions.
example 2b
Where
- the
Buyer is in breach of the Contract,
- the
Seller has served on him notice requiring him to remedy the breach, and
- the
Buyer has failed to comply with the notice within fourteen days from the date
of its service,
the
Seller may terminate the Contract.
“shall” and “may”
The terminology and the analysis of the
legal sentence that I have used above to describe the legal sentence is taken
from George Coode’s “On Legislative
Expression” (House of Commons Papers (1843) vol xx), which remains the basis of
modern parliamentary draftsmanship, but the private sector is in places still
slow to adopt (my earlier article in NLJ of 30 April 1970 clearly had little
effect). In the same paper Coode
analysed the word “shall”, so misused by lawyers, now as then. I now use the structure of a legal sentence
to explain the proper use of “shall” and other expressions, which in turn give
due emphasis to that structure.
In formal English usage “shall”,
when used in the second and third persons, expresses obligation and “will”
futurity. So if I say “You shall be at
my office at 2 o’clock this afternoon,” I am giving a command to you,
expressing an obligation on you, but if I say “The train will arrive at Euston
at 2 o’clock this afternoon,” I am making a forecast, expressing something
which will (I hope) happen in the future.
They are two very different things and the meaning is apt to be confused
if they are misused.
English being the difficult language
it is, the meanings of these words are reversed in the first person, so that
“will” in the first person expresses intention, ie corresponding to a command,
whilst “shall” is the expression of futurity.
Hence when I say “I shall arrive at 2,” all that I am doing is to make a
forecast of my time of arrival, but if I wish to express my intention to arrive
at 2, a command to myself, I say “I will arrive at 2.”
Most legal documents are written in
the third person, so for most purposes “shall” is the appropriate word to
express obligation or prohibition; but
some people might find that “must” is less formal while meaning the same. Only exceptionally, eg wills and deeds poll,
are documents written in the first person, reversing the “will” and
“shall”. These words deals two of the
three legal actions mentioned above. The
third, discretion, is easier and is provided by “may”. The common misuse of these words is the
overuse of “shall” , which is twice mistaken, first by using it in the mistaken
belief that what the document intends to express is futurity and secondly in
the mistaken belief that it is an expression of futurity. Before explaining the risks of misuse of
these words and the advantages of adhering to their formal use, I illustrate
them by returning to example 1 above.
“shall” example (horrible)
Where the Buyer shall be in breach
of the Contract, and the Seller shall have served on him notice
requiring him to remedy the breach, the Buyer shall comply with the
notice.
“shall” example (correct)
Where the Buyer is in breach of the
contract, and the Seller has served on him notice requiring him to
remedy the breach, the Buyer shall comply with the notice.
In the first example, there are
three “shalls” of which only one is used to express
the legal obligation. The other two “shalls” are as commonly used, presumably to express what
might happen in the future, viewed from the time when the clause was
drafted. This is unnecessary and
incorrect and in some cases leads the draftsman, realising that something is
amiss, to express the legal obligation as “will”, thereby wholly losing any
expression of obligation in the legal action.
Modern statutes are written on the
assumption that they are “constantly speaking” so that they apply and are to be
construed at the time when they are applied and the case and condition are
expressed in the present if they apply at the time of the legal action or in
the past if they precede it. Although
there has been at least one case of a will (re Walker [1930] All ER Rep 391) in
which a contrary view has been taken, I think that it cannot be doubted that
the assumption which applies to legislation applies equally to private
documents. Therefore the legal
expression is expressed using words of obligation or discretion, whilst the
case and condition are expressed in the present if applicable up to the time of
the legal actions or the past if to have applied or been done before the legal
action.
article 3 (14 January 2005)
In parts 1 and 2 of this series I have
looked at the structure of a legal sentence (legal subject, legal action, case
and condition), the use of "shall" (to express obligation) and its misuse
(as a mistaken and normally unnecessary expression of futurity) and touched on
paragraphing as an aid to clarity. In
this part I am not looking at general principles but at two specific examples
of poor drafting, which I will analyse (A) to look briefly at
"provisos" and illustrate the parts of a legal sentence and the
benefits of paragraphing and (B) to demonstrate the dangers of an
indiscriminate use of "thereto".
A. PROVISOS
It is trite and an oversimplification to say that the expression
"provided nevertheless that" is legalese for "but", but
this contains more that a grain of truth. The traditional purpose of a proviso, in
legislation and private documents, is to state an exception or exemption from
the preceding provision and is normally inserted at the end of a clause. If restricted to this purpose, a proviso may
be technically unobjectionable, even though a direct expression of the
exception is normally be simpler. It is
however common for a proviso to be also used to express legal obligations or
merely to string together a number of subsidiary provisions that the lawyer
drafting the document does not know how to attach to the main provision. If one's aim is to draft a document in
(relatively) plain English is usually advisable to use a "but" or to
express the exceptions in sub-clauses.
In the following example, there is a substantial proviso containing
first an exception to the main legal action and a sub-proviso contains the
condition on which the exception can apply.
This is a genuine clause in an executed
document drafted in a series of revision adding complication after complication
to what are in reality fairly simple concepts.
example 1 (original form)
Subject only to the provisions of
clause 10 hereof if at any time or from time to time during the period
commencing on the date hereof and expiring on 30 June 2009 ("the
Period") the Grantor desires to sell lease or otherwise dispose of any
estate or interest (an "Estate or Interest") in the Pre-emption Land
or any part or parts thereof ("Land") to a third party or parties (a
"Third Party") it the Grantor shall not do so without first giving
notice in writing (a "Price Notice") to the Grantee of its desire
such notice to state the relevant Estate or Interest and the relevant Land and
the price (if any) ("Expected Price") expected by the Grantor for
such Estate or Interest in such Land and to give full details of all other the
terms of such proposed sale lease or other disposal (as the case may be) which
may affect the price of such Land ("Terms) and particulars of any offer
that the Grantor shall have received from any bona fide disponee
PROVIDED ALWAYS the provisions of this clause shall not apply to any
disposition occurring solely by reason of a change in the trusteeship of the
Charity provided that the Grantor shall procure that on any change in the
trusteeship of the Charity the new trustee or trustees shall enter into and
complete an agreement with the Grantee in identical terms to this agreement
(mutatis mutandis) whereupon the Grantor (here meaning Lloyds Bank plc only)
shall be released from the obligations of this clause...
Before a mass of text can be understood, it must be analysed into
its component parts (legal subject and legal action, case and conditions and
other descriptive phrases. Step one is
to identify what seem to be the legal subjects and actions. Here there appear to be two in the main
provision and two in the proviso. These
are shown yellow in the box below. Step
2 is to underline the circumstances in which the clause applies, including both
cases and conditions, but omitting descriptive detail. Step 3 is to break the main part of this
clause, excluding the proviso, into its main components, which I have marked
(A), (B) and (C). The words after the
(A) are the case in which the first legal action (“the Grantor shall not do
so”) in (B) applies. Although the words
“such notice to state” in (C) look like a legal action, they are actually
another condition for the legal actions
“shall not do so”. The remainder of (C)
sets out the matters (1) to (5) to be contained in the notice mentioned in (B).
This takes us up to the proviso, which
starts as an exception but is complicated by a sub-proviso, which is actually
another legal action ("the Grantor ... shall be released ...". The sub-proviso (“the Grantor shall procure
that …”) looks at first sight like a legal action, but it is actually a
condition for the release of the Grantor at the end of the proviso.
Subject only to the provisions of clause 10
hereof (A) if at any time or from time to time during the
period commencing on the date hereof and expiring on 30 June 2009 ("the
Period") the Grantor desires to sell lease or otherwise dispose
of any estate or interest (an "Estate or Interest") in the
Pre-emption Land or any part or parts thereof ("Land") to a third
party or parties (a "Third Party") it (B) the Grantor shall not do so without
first giving notice in writing (a "Price Notice") to the Grantee
of its desire (C) such
notice to state (1) the relevant Estate or Interest and (2)
the relevant Land and (3) the price (if any) ("Expected
Price") expected by the Grantor for such Estate or Interest in such Land
and (4) to give full details of (4) all other the
terms of such proposed sale lease or other disposal (as the case may be) (4a)
which may affect the price of such Land ("Terms) and (5)
particulars of any offer that the Grantor shall have received from any bona
fide disponee PROVIDED ALWAYS the provisions of this clause shall not apply
to any disposition occurring solely by reason of a change in the trusteeship
of the Charity provided that the Grantor shall procure that on any
change in the trusteeship of the Charity the new trustee or trustees shall
enter into and complete an agreement with the Grantee in identical
terms to this agreement (mutatis mutandis) whereupon the Grantor (here meaning Lloyds Bank plc
only) shall be released
from the obligations of this clause
Once you have analysed a clause to
understand its purpose, it can than be recast, using
definitions and paragraphing to produce the revised version shown below. The use of definitions is not just to give
particular meanings to words, but also to remove bulk from the main clauses, so
their legal elements can be shown as clearly as possible.
You will see that parts (A) and (B) of the
original example are contained in clause 1.1 of the restated version, showing
very plainly the legal action (“shall not do so”), the case in which it applies
(the Grantor’s wish to sell) and the condition (giving a Price notice) to be
complied with.
Clause 1.2 is cast as a legal action,
stating what (all on separate lines like a check list) must be contained in the
Price Notice. The exception in the main
proviso is now clause 1.3 and contains a legal subject and action (“this clause
shall not apply”), the case in which it applies (a change in the trusteeship)
and the condition (execution of the Novation Agreement) to be complied with.
The final legal action is the release of the
Grantor in clause 1.4, the conditions for which is the execution of the
Novation agreement.
example 1 (revised)
In this deed the following
expressions shall have the following meanings.
|
"Estate
or Interest" |
means any estate or interest in
the Pre-emption Land or any part or parts of it. |
|
''Expected
Price" |
means the price expected by the
Grantor for the relevant Estate or Interest. |
|
"Land" |
means the whole or part of the
Pre-emption land specified in a Price Notice. |
|
"Novation
Deed" |
means an agreement by new
trustees of the Charity with the Grantee in identical terms to this agreement
(mutatis mutandis). |
|
"Period" |
means the period commencing on
the date of this deed and expiring on 30 June 2009. |
|
"Price
Notice" |
means a written notice to the
Grantee of the Grantor's wish to sell lease or otherwise dispose of an Estate
or Interest. |
|
"Terms" |
means all the terms of the
proposed sale, lease or other disposal of the Estate or Interest which may
affect the Price. |
|
"Third
Party" |
means a third party or parties. |
1.1 If at any time or
times during the Period the Grantor wishes to sell lease or otherwise dispose
of an Estate or Interest to a Third Party the Grantor shall not do so without
first giving a Price Notice.
1.2 The Price Notice
shall state
-
the relevant Estate or Interest,
-
the relevant Land,
-
the Expected Price (if any), and
-
the Terms, and particulars of any
offer that the Grantor has received from any Third Party.
1.3 This clause shall
not apply to any disposition occurring solely by reason of a change in the
trusteeship of the Charity if the Grantor procures that on any change in the
trusteeship of the Charity the new trustees enter into and complete a Novation
Deed.
1.4 On the execution
of the Novation Deed the Grantor shall be released from the obligations of this
cause.
1.5 This clause is
subject to clause 10
B. “THERETO”
Whenever possible, which means
almost always I eschew the “thereto”, “hereto” and even more the “heretofore”
type words simply because they are words which are more legalise and
English. These words can mark the legal
document as something written in another language kept secret from the laity,
even if the good intention is that is that they are abbreviations and save
repetition by referring back to something already mentioned.
The following example demonstrates the dangers of a
favourite legal draftsman’s shorthand, the dreaded “thereto”. It is not a legal sentence of the kind that we
were considering in parts 1 and 2 of this series, as there is no legal action
(ie no command, prohibition or permission).
It is a statement of fact, and could be a recital or a warranty.
In this example the “thereto”
resulted in an ambiguity, which it is not easy to resolve with certainty.
example 2
The Vendors aware of no substantial defects
relating to the state of repair and condition of the Property now existing or
which have previously existed and has complied substantially with the
requirements of the Landlord under the Lease which have been communicated to
the Vendor with regard thereto.
To what does the “thereto” refer? An attempt can be made to answer that by
analysing the grammatical structure of the example into its normal, breaking it
down into its two main parts.
|
the example |
grammatical analysis |
|
The Vendor |
subject |
|
is aware of |
1st main verb |
|
no
substantial defects relating to the state of repair and
condition of the Property now existing or which have previously existed |
1st
object adjectival phrase qualifying “defects” ie - defects in state of repair - defects now existing |
|
and |
|
|
has complied substantially with |
2nd main verb |
|
the
requirements of the Landlord under the Lease which have
been communicated to the Vendor with regard thereto. |
2nd
object adjectival phrase qualifying
“requirements” ie -Landlord’s requirements - requirements under the Lease - requirements communicated |
With regard to what? The “thereto” can refer to (1) substantial
defects, (2) state of repair and condition, (3) requirements or (4) Lease. As it is not clear from the structure of the
sentence, let us try each one in turn in an attempt to find one (with luck only
one) which makes sense.
|
The whole sentence under these meanings
of thereto can be reduced to these interpretations |
Comments |
|
1. The
Vendor is aware of no substantial defects and has complied substantially with
the requirements of the Landlord with regard to the substantial defects. |
This makes no sense, because the
Vendor cannot comply with requirements relating to something which he is
saying does not exist. |
|
2. The
Vendor is aware of no substantial defects relating to the state of repair and
condition of the Property has complied substantially with the requirements of
the Landlord with regard to the state of repair and condition. |
This does make sense, but
(non-conclusively) the separation of “state of repair and condition” from
“thereto” makes this a less attractive than interpretation 4. |
|
3. The
Vendor is aware of no substantial defects and has complied substantially with
the requirements of the Landlord with regard to the requirements. |
This is a tautology and so makes
no sense. |
|
4. The
Vendor is aware of no substantial defects and has complied substantially with
the requirements of the Landlord with regard to the Lease. |
This does make sense and, because
(non-conclusively) “Lease” is in close proximity to “thereto”, this may be preferable
to interpretation 2. |
My conclusion therefore is that the use of the word
“thereto” makes in impossible to be sure what the
draftsman intended. Interpretation 4 is
my best guess, but that depends on no more than the proximity of the words
“Lease” and “thereto”. However the
context of this sentence (I was asked to advise on the sentence on its own)
could show that the parties were concerned with was the state or repairs, in
which case interpretation 2 is to be preferred.
The lesson is to ascertain what is intended and say it
without using abbreviations unless they are wholly unambiguous.
article 4 (4 February 2005)
Only when the A and the B are
clearly understood and the risks ascertained can a start be made to draft the
document, when the following rules of drafting are generally useful:
1 outline the whole scheme of the document;
2 omit nothing essential and include nothing unnecessary;
3 follow a logical order;
4 conform with the ordinary form of the document; and
5 use accurate language, including, when necessary, technical
language which has already been interpreted by statute of the courts.
time
Unless the parties to an agreement
agree some other meaning, “month” and “year” mean respectively a calendar month
and a calendar year starting on 1 January, regardless of the number of
days. It is better to say “four weeks”
or “28 days” rather than “lunar month”.
A day is normally the period of 24 hours from midnight to the following
midnight, so a period “starting on 1 January” starts at midnight on 31 Decemebr/1 January, but, in Cornfoot v Royal Exchange
Assurance Corporation [1904] 1 KB 40, the apparent intention of the parties was
that thirty days meant thirty consecutive periods of 24 hours and not thirty
calendar days.
“From 1 January ...” is ambiguous as
the time could be inclusive or exclusive of that date and can mean either
“after 31 December ...” or “after 1 January ...”: according to Browne v Black
[1912] 1 KB 316, (and plain English), “14 days after 1 January 2005” will
exclude that date. “From and after 1
January ...” probably does not resolve the ambiguity: according to Goldsmith’s
Company v West Metropolitan Railway [1904] 1 KB 1, if an act is to be done
within a period from a certain date, that date is to be excluded; but in the
particular circumstances of the deed considered in English v Cliff [1914] 2 Ch
376 the date was included. A better alternative is “a period of 28 day
starting on”. Alternatively you could
define (eg) “Option Period” as “the period after 31 December 2005 and before 1
April 2005” and stipulate: “... the
Buyer shall give notice in the Option Period”.
The end of the period may also be
inclusive or exclusive, which should be mad clear by words such as “before (date)”
or “ending on (date)”. “14 clear
days” means that fourteen days must elapse between the dates
An unqualified number, eg days’
prior notice may mean that there is only one day on which the (eg) notice can
be given. Unless that is intended the
period should be “not less [or more]
than 14 days”; and if an exact period is intended, it should be expressed, for
the avoidance of doubt, as “14 days and neither more nor less that 14 days”.
heretofore
etc
Although “therefore” (and to a
lesser extent “therefor”) are used in everyday English, “hereto”, “theretofore”
and all that class of words are archaic legal forms that are more or less
unknown in normal English and add nothing to a legal documents, except perhaps
a little pomp and ceremony, but gives the impression that it has been written
someone wholly out of touch with the real world.
example
“Where
the Buyer is in breach of the Contract, and the Seller has served on him notice
requiring him to remedy the breach, and the Buyer has failed to comply with the
notice within fourteen days from the date of its service, the Seller may
terminate the Contract, forfeit the Deposit and claim interest.”
“Where
… the Seller may do all or any of the following:
(a)
terminate the Contract;
(b)
forfeit the Deposit;
and
(c)
claim interest.”
“Where
… the Seller may do all but not any of the following:
(a)
terminate the Contract;
(b)
forfeit the Deposit;
and
(c)
claim interest.”
“Where
… the Seller may do either but not both of the following:
(a)
terminate the Contract;
or
(b)
both forfeit the
Deposit and claim interest.”
such, said and same
These words do exist in Plain
English, but less frequently and not in the same was as in Legalese. “Such ... as” is commonplace is
unobjectionable, but “such” as a kind of demonstrative adjective to link a word
to a previous use of that word is cumbersome and offers no more precision than
a simple “the”, “that” of “those”. Sir
Frederick Pollock, once an editor of the Law Reports, wrote: ‘As to such,
this is the kind of attorney’s clerk’s slang I have tried to choke off: “The plaintiff was the tenant of a house in X
Street. Such street was admitted to be a
new street within etc, etc”. They think
it looks more professional. And so it
has crept even into judgments.’
The same objection applies to “the
said” and “the same”. “The said John
Smith” cannot reasonably be anyone other the John Smith mentioned in the
previous sentence. If another John Smith
has appeared in the narrative, the writer would have said “another person
called John Smith”; and if two John Smiths had already appeared, a “the said”
would not identify which of them is now intended. Similarly a gift of my property Greenacre to my executors with a directions “to hold the
same on trust etc”, means neither more not less that
“to hold it on trust etc”.
These are all archaic legalism which
add nothing to the meaning of a document.
If there is a need to link a word with the same word previously used and
to distinguish it from the same word in another context between two words, one
used in a general sense, none of such
said or same will make the distinction clear, but a definition will.
present
participles (˜ing)
“Anyone driving over the x limit ...
shall be liable” or “anyone failing to pay interest ... shall be liable” leaves
uncertainty whether the act or failure (which is a conditions as described in
Article 2) precedes of must apply at the time of the legal action. They are better expressed as “anyone who
drives over the x limit” or “anyone who has failed to pay interest ...”.
consistency,
tracking
If a previous provision in a
document is repeated, and the expression is not one which can be dealt with by
a definition, the same words must be used, as far as possible, in the second
and subsequent use as on the first occasion, because, different words will lead
to the inference that another different meaning is intended. Similarly when a clause is being drafted to
comply with a condition set in a another document, a statute or an earlier
agreement, the clause should “track” so far as possible the wording of the
original.
gender
The LPA 125 s61 enacts that the masculine includes the feminine and vice versa
and the use of “he”, “him” and “his” as neuter pronouns is technically correct
and leads to simpler language that the use of gender neutral expressions such
as “he or she” of “he/she” of “(s)he” (see the opening paragraph on Article
2). Nevertheless, you should consider
more use of “he or she” etc in documents used directly by large numbers of the
public, such as employment terms despite the risk that an excessive use of
expressions of this kind are cumbersome and unnecessary.
The use
of “their” as a singular pronoun can be a delight in poetry but is an
abhorrence leading to ambiguity in legal documents. In “Where an
applicant notifies the other residents of a complaint, they must lodge a
section 12 notice within 14 days” the grammarian might think that the “they”,
being plural, refers to the “other residents?” and that they should lodge the
notice; but the drafter of this clause might have meant that the applicant
should lodge the notice. The latter
meaning would have been clear had the clause read “Where an applicant notifies
the other residents of a complaint, he or she must lodge a section 12 notice
within 14 days.”
“Person”, incidentally, is defined
in the same section to include a
corporation.
punctuation
(In
response to a reader’s enquiry about my views on punctuation.)
wordlist
|
legalese |
English |
|
(“hereinafter called the Vendor”) |
(“Seller”) |
|
...(or) thereabouts |
about |
|
during the continuance of |
during |
|
accordingly |
so (or) therefore |
|
adjacent to |
next to |
|
affix |
attach |
|
any fact or matter |
anything |
|
arising out of |
resulting from |
|
as from |
from |
|
concerning |
about |
|
consent of the Landlord |
the Landlord’s consent |
|
decease |
death |
|
demised premises |
Property |
|
determination |
termination (or) end |
|
determine |
terminate (or) end |
|
determine [price] |
decide (or) fix |
|
devise end bequeath |
give |
|
discontinue |
stop |
|
duly |
(nothing - delete without
replacement) |
|
during the period of x months |
for x months |
|
during their joint lives |
while they are both living |
|
dwelling-house |
house |
|
endeavour |
try |
|
entitlement |
right |
|
excluding |
apart from |
|
expended |
paid |
|
expiration (or) expiry |
end |
|
fire or other inevitable accident |
inevitable accident |
|
forthwith |
immediately |
|
henceforth |
from now on |
|
hereby |
(nothing - delete without
replacement - or sometimes) now |
|
heretorfore
etc |
(nothing - delete without
replacement) |
|
in connection with |
about |
|
in relation to |
about |
|
in specie |
in kind |
|
in the event of |
if |
|
in the manner following |
as follows |
|
in this behalf |
[enabling him] to do so |
|
in writing |
written |
|
is desirous of |
wishes to |
|
make payment of |
pay |
|
observe and perform |
comply with |
|
on behalf of |
for |
|
on foot |
in force |
|
on the expiration of |
at the end of |
|
other than |
except |
|
prior to |
before |
|
provided nevertheless that |
but (or) on condition that |
|
provisions of clause 2 |
clause 2 |
|
purchase |
buy |
|
purchase money/price |
price (or) Price |
|
Purchaser |
Buyer |
|
re |
about |
|
right and liberty |
right |
|
said |
(nothing - delete without
replacement or) that |
|
save [for] |
except [for] |
|
shall be at liberty to |
may |
|
shall have power to |
may |
|
situate at |
at |
|
subject to |
if (or) as long as |
|
such |
(usually) the (or) that |
|
thereafter |
then |
|
to the intent that |
so that |
|
well and sufficiently |
well |
|
with reference to |
about |
|
with regard to |
about |
|
yielding and paying |
paying |
article 5 (8 April 2005)
But
will the courts believe what you write?
Having
taken a brief look at “how to write it”, it is instructive to ask whether the
courts will pay any attention. The
classic rule is that the court must ascertain the parties” intention from their
expression of it, and not what the court thinks that their intention should
have been despite what was expressed.
This was illustrated in by the House of Lords in Sefton v Tophams Ltd
[1966] 1 All ER 1,039, in which Lord Upjohn said at 1047-8: “… I cannot see how their belief as to the
operation of the covenant in relation to assigns from the Tophams can effect the proper construction to be placed on the words
which your Lordships have to construe.
That seems to me to be as
irrelevant in construing the words as is the fact that for whatever reason the
respondent concedes that he cannot now enforce it.” As Robinson on Drafting (Butterworths
1980) put it: “If the parties intend one
thing but agree another, then the parties are bound by the meaning to be given to
the expressed words. Resort to intention
in a court of law is a last ditch stand:
it is too late. If draftsman
fails to express the intention, the courts cannot remedy the defect.”
Or can they? Leaving aside rectification, I offer you now
two similar cases in which the courts have looked at the words, decided that
what they said was inconvenient (or wrong, depends on whose perspective you
take) and so reached decisions that the parties’ or legislator’s intentions
were the opposite of what appears to have been expressed by the words and that
the intentions were to be upheld.
Can
or must the trustees consent?
In re
Courage Group’s Pension Schemes, Ryan and others v Imperial Brewing and Leisure
Ltd and others, ChD, [1987] 1 All ER 528, the court had been asked to
consider the exercise of a power of amendment in clause 15 of a pension scheme
trust deed, which reads as follows.
“The Company may at any time by deed
supplemental hereto add to delete or vary all or any of the provisions of this
Deed or of the Rules and the Committee of Management shall concur in executing
any such supplemental deed.”
An
occupational pension scheme is established by an employer and must have
trustees, whose principal purpose is to receive contributions paid to the
scheme and hold the fund arising from them and the investment return in them,
so that the fund is available for the pavements of pensions and other benefits
free from the risk claims by the employer’s creditors. The trustees are usually the scheme’s
administrators and are responsible for the payment of benefits; and a major
part of the drafting of pension scheme’s trust deeds is concerned with the
balance of power between the employer and the trustees. Typically the employer has the power to
appoint and remove trustees, subject to the overriding statutory requirement
for members nominated trustees.
Commonly, but not (quite) universally, the power to alter the scheme is
shared between the employer and the trustees, so that the employer can change
the scheme with the consent of the trustees or vice versa but neither has an
unilateral power to do so.
Where the
balance of power rests is not the object of this article, except that the two
(somewhat exaggerated) opposed possibilities can illustrate how an assumption
of what was intended in this case may have affected the court’s willingness to
avoid the literal interpretation of the words used by the parties. One viewpoint, doubtless regarded as
reactionary, is that a pension scheme is no more that an extension of employer’s
employment policy, in which the security of the scheme’s assets is the prime,
or even the only, purpose of the trust (a trust is a precondition for tax
relief, but that is a superficiality superimposed on the fundamental purpose). From this viewpoint, the trustees are
instruments for carrying out the employer’s employment and reward policy, and
it is not for them to be responsible for major decisions concerning the
scheme. The second, and more common,
viewpoint is that the pension trust has an independent life of its own, and,
having established it, the main function of the employer is to pick up the
financial tab; and that the trustees are not just primarily responsible for the
administration of the scheme but must also participate in any major decision
about it.
Now back
to the Courage case. During a contested
take-over bid, the employer had purported to change the scheme by closing it to
new members, in order to frustrate any aim of the bidder, the Hanson Group, to
use the surplus funds in the scheme for
its own advantage of that of its employees.
The validity of the alteration was challenged.
The
employer argued that it alone had the power of amendment, and that, if it
exercised it, the use of the mandatory word “shall” obliged the Committee of
Management (as the trustees of this scheme were known) to concur. “Shall”, said, the employer’s counsel, means
“shall” not “may”. What, however, the
Millett J found decisive was that there was no purpose in requiring the
committee of management to join in executing an amending deed if it was a mere
formality. He concluded therefore
that the committee of management had a
discretion and was not bound to concur in executing an amending deed. Although he did not say as much, this finding
is tantamount to inserting the words “if it thinks fit” before the “shall”.
This
finding accords with the second balance of power viewpoint. The first viewpoint would have required, for
example “for the sole purpose of acknowledging the changes made by the Company”
to the end of the clause.
But even
if words been used to show beyond doubt that the employer had sole power to
alter the scheme, one would still be left with the dilemma pointed out by
Millett: should one then treat the words
about the committee of management as supernumerary and ignore them or look in
the context for a purposeful meaning?
Evidently he preferred the latter.
Does
as company include its subsidiaries?
Acts of
Parliament are as prone to creative interpretation as private documents. Section 459(1) of the Companies Act 1985
gives us as a good an example as the Litster case in the newer and less well
known case of re City Branch Group Ltd, Gross and others v Rackind and
others, [2004] EWCA Civ 815, CA..
The section reads as follows.
“A member of a company may apply to the court by
petition for an order under this Part on the ground that the company’s affairs
are being or have been conducted in a manner which is unfairly prejudicial to
the interests of its members generally or of some part of its members
(including at least himself) or that any actual or proposed act or omission of
the company (including an act or omission on its behalf) is or would be so
prejudicial.”
In the wider proceedings,
(simplified) two shareholders each petitioned to have the company (C) wound
up. One of them (G) based his petition
on an allegation of unfairly prejudicial conduct on the part of (R). R retorted that the alleged conduct was in
relation to a subsidiary of C and not of C itself and sought to have G’s
petition struck out. His application was
refused by Weeks QC, sitting as a deputy High Court judge, and his appeal to
the Court of Appeal was dismissed. G was
therefore entitled to petition on the grounds of alleged unfairly prejudicial
conduct of the affairs of a subsidiary of C.
Superficially
this is contrary to the plain words of s459(1).
The literal as opposed to the liberal interpretation could argue that,
if a wider meaning was intended, the legislator could have said simply “the
company”, but included its subsidiary and holding companies (defined in the
Companies Act 1985, s736) or “group” (ib s262), and,
as it did not do so, the narrower and literal interpretation is correct. This approach overlooks a wider view of the
matter, in which the words must be viewed in the context in which they are
used. In Re A Company [1987] BCLC 141
Harman J said: “All these cases
together, in my judgment, lead one clearly to the understanding that the
conduct to be complained of must be in the affairs of the very company in
respect of which the petition is presented”; but, as was pointed out in City
Branch, Harman was not dealing with a group of companies. The affairs of a company include, citing
Phillimore J in R v Board of Trade ex parte St Martin’s Preserving Co Ltd
[1965] 1 QH 603: “[The affairs] of a company must
surely include its goodwill, its profits or losses, its contract and assets
including its shareholding in and ability to control the affairs of a
subsidiary …”.
There was thus no
need therefore to distort the normal usages of language and to confuse the
singular with the plural. Instead one
must look first at the words and then, in order to understand how they operate,
the contest in which they operate and be aware, whether interpreting or
drafting, which is the other side of the same coin,, that the first and obvious
(or superficial) point may not be the point that matters.
the
new principles of interpretation
The aim of
interpretation is still to ascertain the intention of the parties from their
words, but there has been a shift from an emphasis on the words alone to a more
liberal, wider approach, as illustrated by the three following cases in the
late 90s (but for some earlier key cases see box 2)
In Cargill International SA and another v Bangladesh Sugar and Food
Industries Corp, [1998] 2
All ER 406, CA, Potter LJ said at
413: “On the other hand, modern principles of construction require the court to
have regard to the commercial background, the context of the contract and the
circumstances of the parties, and to consider whether, against that background
and in that context, to give the words a particular or restricted meaning would
lead to an apparently unreasonable and unfair result.”
Next in Mannai Investment Co Ltd
v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352, HL, Lord Steyn said at 372: “In determining the meaning of the language
of a commercial contract, and unilateral contractual notices, the law therefore
generally favours a commercially sensible construction. The reason for this
approach is that a commercial construction is more likely to give effect to the
intention of the parties. Words are therefore
interpreted in the way in which a reasonable commercial person would construe
them. And the standard of the reasonable
commercial person is hostile to technical interpretations and undue emphasis on
niceties of language.”
Finally, for the
guidelines on interpretation given by Lord Harman in Investors Compensation
Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98, HL at 114,
see box 1.
modern
guidelines
Lord Harman
in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998]
1 All ER 98, HL, said at 114:
The result has
been, subject to one important exception, to assimilate the way in which such
documents are interpreted by judges to the common sense principles by which any
serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of
“legal” interpretation has been discarded.
The principles may be summarised as follows.
(1)
Interpretation
is the ascertainment of the meaning which the document would convey to a
reasonable person having all the background knowledge which would reasonably
have been available to the parties in the situation in which they were at the
time of the contract.
(2)
The
background was famously referred to by Lord Wilberforce as the “matrix of fact”,
but this phrase is, if anything, an understated description of what the
background may include. Subject to the
requirement that it should have been reasonably available to the parties and to
the exception to be mentioned next, it includes absolutely anything which would
have affected the way in which the language of the document would have been
understood by a reasonable man.
(3)
The law
excludes from the admissible background the previous negotiations of the
parties and their declarations of subjective intent. They are admissible only in an action for
rectification. The law makes this
distinction for reasons of practical policy and, in this respect only, legal
interpretation differs from the way we would interpret utterances in ordinary
life. The boundaries of this exception
are in some respects unclear. But this
is not the occasion on which to explore them.
(4)
The
meaning which a document (or any other utterance) would convey to a reasonable
man is not the same thing as the meaning of its words. The meaning of words is a matter of
dictionaries and grammars; the meaning of the document is what the parties
using those words against the relevant background would reasonably have been
understood to mean. The background may
not merely enable the reasonable man to choose between the possible meanings of
words which are ambiguous but even (as occasionally happens in ordinary life)
to conclude that the parties must, for whatever reason, have used the wrong
words or syntax (see Mannai
Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352,
[1997] 2 WLR 945.
(5)
The ‘rule’
that words should be given their ‘natural and ordinary meaning’ reflects the
commonsense proposition that we do not easily accept that people have made
linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless
conclude from the background that something must have gone wrong with the
language, the law does not require judges to attribute to the parties an
intention which they plainly could not have had. Lord Diplock made this point more vigorously
when he said in Antaios Cia Naviera
SA v Salen Rederierna AB, The Antaios [1984] 3 All ER 229 at 233, [1985] AC 191 at 201:
‘… if detailed semantic and syntactical analysis of
words in a commercial contract is going to lead to a conclusion that flouts
business common sense, it must be made to yield to business common sense.’
copyright
Roderick Ramage
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