“In the event that the Party of the First Part undertakes any act or effort whatsoever to extend such Party’s rights hereunder beyond that reasonably contemplated by the Party of the Second Part under a restrictive interpretation said Party’s understanding of their respective rights, duties, and obligations hereunder, the Party of the Second Part shall, upon provision of prior written notice to the Party of the First Part, be excused from any performance obligations hereunder to the extent that such performance obligations may indicate or express an agreement on the part of the Party of the Second Part to accept such extension of rights.”
This bizarre, convoluted language has rightfully earned the name “legalese.” Like any other language, it is rarely understood by anyone other than its native speakers (and sometimes not even then). Unlike any other language, however, the use of twisted legalese can lead to a costly court battle.
A Brief History of Legalese: How is it that people who are brought up speaking the same language as anyone else in their country come out of law school writing sentences that cannot be understood by anyone other than themselves? Many experts believe that legalese has its roots in the the Battle of Hastings in 1066, which lead to the Norman conquest of England. After the conquest, Norman French found its way into English courts. English lawyers were unsure as to whether a French word had the same meaning in English, and thus began to include both words in contracts to be on the safe side. This lead to phrases still in use today, such as “right, title, and interest,” where “right” and “title” are English, and “interest” is French, and “breaking and entering,” in which the English word “breaking” is paired with the French word “entering.” This cross-channel linguistic mashup begat ever more convoluted phraseology as it was passed from generation to generation of lawyers.
The Rise of Plain English: Although legalese is a language unto itself, it was still widely used in contracts until the mid 1970’s. Then, in 1975, attorneys for Citibank created the first “reader-friendly” consumer loan agreement by eliminating legalese and replacing it with shorter, more precise language, while at the same time adding numbered paragraphs and other aids to understanding. In the ensuing decades, contract law professors began to adopt the “Plain English” concept and taught it to their students. By the time the 90’s rolled around, Plain English was even adopted as a requirement for certain consumer agreements in some states.
The benefit of using plain English is abundantly clear. When contracts are written in pure legalese, the parties that actually need to perform them may not understand their obligations. This results in an ambiguity in which one party to a contract interprets a confusing term differently then the other party, which in turn results in contractual disputes and litigation. So why do many lawyers still continue to incorporate legalese in contracts, despite the rise of plain English? There are basically three reasons why this practice continues:
– Tradition: The legal profession has a long and colorful history. Legalese is as much a tradition as the wigs and robes still used in English courts, and, like English lawyers, American attorneys are reluctant to abandon their treasured traditions.
– Laziness: When drafting contracts, many lawyers simply copy the language of earlier contracts. This practice has been undertaken by attorneys from the year 1066 to the present day, which means that some elements of legalese are simply passed on.
– Self-importance: It’s important for an attorney to appear more educated and intelligent than the clients who hire them. Many continue to include legalese to impress their clients and justify high bills.
Here’s a parting lesson: Read every contract before you sign it. If your contract includes bizarre and convoluted legalese that you can’t easily understand, ask your attorney what it means. If he or she can’t readily explain it, don’t sign the contract, and hire a new attorney.