Genre conventions for contracts and contract writing

Juridisk engelsk: Kontraktret

25 September, 2012 Birthe Mousten - 1 - © Genre conventions for contracts M.Engl., Ph.D., [email protected]/[email protected]

Genre conventions for contracts and contract writing

List of contents

General genre principles for contracts ...................................................................................................2

Principles for drafting a contract ............................................................................................................3

Graphic devices ..................................................................................................................................3

Organization of the text .................................................................................................................3

Fonts ...............................................................................................................................................4

Upper-case (all-caps) or lower-case letters ....................................................................................4

Stylistic devices ...................................................................................................................................4

Principle of the periodic style .........................................................................................................4

Participle constructions or relative reductions ..............................................................................5

Archaisms .......................................................................................................................................5

Passive structures ...........................................................................................................................6

Linguistic conventions ............................................................................................................................6

Auxiliary verbs ................................................................................................................................6

Special markers ..............................................................................................................................7

Names and designations ................................................................................................................8

Figures ............................................................................................................................................8

Doublets and triplets ......................................................................................................................8

Other linguistic devices ............................................................................................................... 10

Drill .............................................................................................................................................. 10



Generalgenreprinciplesforcontracts

Heading: Contains the type of the genre, e.g. exclusive distribution

agreement

Commencement: States the nature and purpose of the document. Typically, the phrase starts as follows: ‘This agreement is made on…’ and ‘date’.

Dates: DK and UK date conventions dd-mm-yyyy US date conventions mm-dd-yyyy. International, if nothing else is specified, then dd-mm-yyyy.

To avoid any possibility of misunderstanding, use letters for the month.

Names: The names of the parties to the contract are written in full and with an abbreviated designation. The designation is in parenthesis, for instance (‘Agreement’), or in an appositional phrase, for instance ‘hereinafter called Agreement’.

Abbreviations may be used as a designation, but only for companies, never for persons.

Instead of referring to the parties to the contract by name, it is conventional to insert their position, for instance ‘Principal’ and ‘Agent’.

Note that in English everything or everybody designated is written in an initial capital letter throughout the document.

Note also that the Danish convention for designating parties to the contract is in lower-case letters throughout the contract, although a rub-off effect in Danish is increasingly seen.

Recitals: More detailed documents may set out some background details and information as to what the agreement is about.

Definitions: Definitions of terms used in legal documents are often placed in a definitions section, for instance ‘Products’, ‘Territory’ and other specific variables, which are important in the contract.

The purpose is to avoid defining and describing the content of the word several times in a document.

Definitions are placed in alphabetical order.

Operative part: Normally the main bulk of a document. Everything agreed upon between the parties must be placed here under a separate provision/sub-section/clause.



Each provision/subsection/clause must address one specific matter, for instance price or terms of delivery, etc.

Execution: Execution of a document is the final part of the document where the signing parties to the contract have been set up with names, affiliations, signatures and date of execution.

Schedules: A contract or agreement normally has other documents affiliated with it. In these documents, information that can be changed at no notice or only with short notice has been written. This may include price lists, product lists, list of customers, business contacts as well as other information relevant to the daily operation of the business.

This section of the contract has many names, for instance schedules, exhibits, annexes, attachments, enclosures and appendices.

A schedule (or whatever word is used instead of schedule) should either be numbered with letters or figures.

Duration of the contract: Later during the duration of a contract, there may be an addendum (addenda) or amendments or similar expressions for documents affiliated with the contract.

Principlesfordraftingacontract

The general principles can be divided into three main areas: The graphic devices, the stylistic devices and the linguistic conventions. These areas will be described below.

Graphicdevices

Several aspects can be pointed out here: the organization of the text, the fonts used and the use of upper-case or lower-case letters in different places in the contract.

Organizationofthetext

The organization of an English contract follows specific genre conventions for contractual writing. English legal texts can be organized along the following lines, but since there is freedom to contract, the organization will often follow company guidelines:

Genre convention Set-up of text

Heading/title of contract Upper-case, bold fonts

Commencement A standard paragraph/(s) with standardized,

idiomatic phrases. Possibility of some words

in upper-case letters.

Note the date conventions.

Etc.



Fonts

The fonts used in a contract, for instance, are often capital letters for the title of the document (+bold) as well as for the headlines at first level of the document.

The text is divided into sections and subsections by means of an Arabic or Roman numeral system.

Upper-case (all-caps) or lower-case letters

The names of the parties to the contract are written in upper-case letters, either with the first letter of the party, for instance Seller, or the whole party, for instance SELLER. This is important in the sense that if a contract has to be interpreted by a court, then Seller or SELLER, as the case may be, will always be interpreted as the contractual party, whereas—in cases of doubt—a lower-case seller could be interpreted as another person than the contractual party.

Some clauses of the contract are typically written in common-style fonts, whereas some clauses are written totally with capital/upper-case letters. Then we refer to them as all-caps clauses. All-caps clauses have become customary in contracts to alert readers by being conspicuous. It is a way to signal to the readers that these sections should be read carefully.

It is not an obligation on the part of the contractual parties to make all-caps sections in contracts, but it is seen quite often. There is no legal consequence in making complete clauses all-caps compared to not doing it.

Stylistic devices

Four stylistic devices are normally seen in legal Danish:

1) The periodic style 2) Participle constructions in front position 3) Archaism 4) The use of passive structures

The same stylistic devices are normally seen in legal English, but where the participle constructions occur in a front position in Danish, legal English is rich in relative reductions. The rules in English may therefore be phrased as follows,

1) The periodic style 2) Relative reductions (ing-forms/progressive forms or ed-forms/pp-forms) 3) Archaism 4) The use of passive structures

Principle of the periodic style

The first principle in legal writing is the principle of periodic style. It means that within the same ‘period’—from one full stop to the next, there should only be one rule (for instance an order, a permit, a prohibition). All preconditions, conditions and other circumstances linked to this one rule should be kept in the same period.



A period may look like the following example:

If a ruling is appealed the court which has made the ruling or the court to which the ruling has been appealed can decide that the business activity to which authorization is required cannot be performed during the appeal case.

All periods may be divided structurally as the period below. The conditions, or you may say the background situation, start out the period. Then the specifications or limitations, if any, that will specify or limit the situation or the condition, are written, and the third element in the period is the defining right or duty, which is typically represented by an agent or acting institution and what that agent or institution does.

Below, the example has been analyzed according to the three elements of the period:

Conditions/background Specifications /limitations Defining right or duty

If a ruling is appealed … the court

… which has made the ruling or the court

…

to which the ruling has been

appealed

can decide that the business

activity

…

to which authorization is

required

cannot be performed during

the appeal case.

New sentence..

Participle constructions or relative reductions

Danish legal language follows the style that is also found in German contracts, where a disguised relative sentence is placed in front position or incorporated in the sentence, for instance:

Beskikkelse kan nægtes under de i borgerlig straffelovs §78, stk. 2, nævnte omstændigheder.

The same information would be rendered into English by means of a relative reduction, for instance:

Authorization can be withheld under the circumstances mentioned in the Danish Penal Code …..

Archaisms

Old-fashioned language/archaism has a tendency to survive in legal contexts, for instance from Danish “Thi kendes for ret” and “Der erlægges en afgift”. In English, archaism is even more pronounced, with traces from Latin and French as well as old English. Examples would be the opening word of many contracts, “Whereas”, Latin phrases such as “Quantum meruit1” and French phrases such as “Parol evidence rule2”.

1 “As much as he deserved it.” In contract law it means the reasonable value of services and is imposed to

avoid the unjust enrichment of one party at the expense of another.



Passive structures

The use of the passive structure in legal English is common and is used to add formality and objectivity to a text. However, there is a different rationale between using the passive and the active voice in legal English. Compare the following sentences,

Typical passive voice:

The liability of any Member in default shall3 be increased (reason: drawing attention to obligation)

Consideration must be given to support a contractual promise (reason: includes everybody)

Special measures were taken … (reason: The subject/agent has just been mentioned in the previous sentence)

Mix of active and passive voice:

The Principal appoints the Agent. The Agent agrees to act as the Agent of the Principal……The Agent shall make appropriate credit checks on potential customers. The Agent shall be paid in consideration of the Agent’s services a commission as follows,…

Note: When the relation between two parties to a contract is defined, the present tense is used.

Linguistic conventions

In addition to the devices and conventions mentioned above, a couple of other important textual devices should be mentioned.

Auxiliary verbs

The auxiliary verbs most often used to state an obligation is ‘shall’ or ‘must’. In comparison with common-core English, where ‘shall’ is hardly ever used, it stands out strongly as an obligation in a legal text. Bear in mind that ‘shall’ or ‘must’ can only be used when there is some kind of obligation that must be conferred on the other party to the contract. It should never be used when stating facts. Please see the COAL document.

2 “Oral evidence rule.” The rule that oral evidence cannot be given to contradict, alter or vary a written

document unless there are allegations of fraud or mistake. Within especially US and CISG contracts today, the

term N.O.M. (no oral modification) is often stated to emphasize the same principle. 3 For the use of shall versus must and other auxiliary verbs, please consult the document on ’COAL’.



Special markers

In legal English, numerous special markers are used. From the sample agreement, we see:

Sagent agrees to authorize Distributor to so market and distribute such computer hardware (page 1)

The Distributor hereby accepts appointment (page 2)

Sagent shall have the right to terminate this Agreement without liability at any time thereafter.. (page 3)

Distributor shall not use the Sagent Marks except as expressly permitted herein. (page 3)

Distributor shall fully comply with all guidelines, if any, … (page 3)

Sagent shall retain any and all damages, settlement… (page 4)

In the event Sagent discontinues sale of any Product,…. (page 7)

Etc.

In relation to common-core English, dominant markers in this context are unusual/specialized vocabulary, enhancers and redundancy.

From the examples above, we see the specialized legal vobabulary in the words thereafter, herein and any and all. There are many other examples of specialized, “oldfashioned” words and phrases in legal language.

Enhancers are common. Typically they will replace more neutral expressions, such as the or our or other more neutral grammatical determiners. The purpose of these small function words are that they act to either create a cohesive device or as a stronger cohesive device than the words they replace. From the examples above, we see:

To so market and distribute such computer hardware – enhancement and stronger cohesion than: to market and distribute the computer hardware. The first device so

(enhancer) is an additional sentence element where such (enhancer and strong cohesive device) replaces a more neutral definite determiner the.

The Distributor hereby accepts… -> hereby is also an additional sentence element with the function of encompassing the whole text.

Except as expressly permitted herein -> herein also functions as an encompassing element in the same way as hereby in the example above.

Redundancy is also a typical marker in legal language. The reason for using redundancy is basically historic and is under attack from many lawyers and linguists today, but is still a dominant feature in many legal texts. From the examples above, we see:



At any time thereafter – thereafter would suffice Expressly permitted – permitted would suffice Fully comply – comply would suffice All guidelines, if any, - all guidelines would suffice Any and all – all would suffice Together, these special markers form part of what can be termed ‘idiomatic’ legal language. In combination, these special markers can be defined as the specific legal style in English. Names and designations

Names and certain designations in the contract are written

UK: with an indefinite or definite article in the document US: without an indefinite or definite article in the document

Examples: UK: The Distributor shall be responsible for supplying information US: Distributor shall be responsible for supplying information

Figures

Figures, especially for amounts and days are written first in letters, then in numerals in a parenthesis after that.

• Within sixty (60) days following the date...

• A charge is made equal to ten per cent (10%) of the price…

Doublets and triplets

Doublets, which are defined as two words that are synonyms or near-synonyms, and triplets, which are defined as three words that are synonyms or near-synonyms, are quite common in legal English.

Doublets and triples are especially common in English legal language, and the reasons for that are historic. According to Garner, the reasons are the following:

• the language of the law originated in the more leisurely prose of past times

• English oral tradition led to the use of repetition to allow listeners time to understand the speaker’s point

• unfamiliar words could be given meaning by using them with one or more synonyms

• lawyers seem to have a natural distrust of their ability to fully convey the intended meaning using just a single word, and so often use a number of synonyms in the hope of avoiding unintended meanings and potential misinterpretation.



Doublets and triplets are a result of the desire to get precise, concise and specific meaning. In some cases, one word in a doublet or triplet is sufficient to express the meaning of each word in the expression. However, beware that sometimes it is necessary to use a doublet or triplet as a term of art, eg. aid and abet.

Please see the examples below:

• All such taxes and charges • All terms and conditions under this contract • To be reimbursed for all costs and expenses.. • The Distributor represents and warrants… • The Distributor will obtain any and all import licences.. • The exclusion is declared illegal or void… • The Agreement shall be governed and construed under the law of ……

In the examples above, we see a mix of terms that are near-synonyms. It may be argued that at least some could be simplified into one term.

In the examples below, we see another reason why doublets have become such an important part of the English legal inheritance. OE is short for old English origin, F for French origin and L for Latin origin

• of sound mind (OE) and memory (L) • give (OE) devise (F) and bequeath (OE) • will (OE) and testament (F/L) • goods (OE) and chattles (F) • final (F) and conclusive (L) • fit (OE) and proper (F) • new (OE) and novel (F) • save (F) and except (L) • peace (F) and quiet (L)

In the examples below, we see another set of terms used as doublets, which could probably be simplified without much discussion.

• all and singular • any and all • cease and terminate • if and when • pay and discharge • possession, custody and control • way, shape or form

The plain language movement advocates that doublets and triplets be removed from any legal document. Other lawyers argue that they are necessary.

In the examples above, a plain language advocate would prefer that one of the terms should be avoided whereas most lawyers would probably argue that the meaning differs between the doublets.



Other linguistic devices

There are other linguistic devices used in a contract. It would be a too lengthy discussion to go through them all now. The active reader spots them in genuine English texts, makes a mental note of them and uses them later in his or her own writing. We will no doubt see some of them later today.

Drill

This is a contract of sale for ……

"I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck and otherwise eat the same, or give the same away, with or without its rind, skin, juice, pulp and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of whatever nature or kind whatsoever, to the contrary in any wise notwithstanding." (Elliott, 1991).

Sources used:

Elliot, C. (1991). “How Legal Language Evolved”, Speech notes, 25th March 1991, online source available September 2012 at www.davidelliot.com.../howlegallanguageevolved.

Elliot, C. and Quinn, F.(2001) Contract Law. London/New York, Sydney/Tokyo and others : Pearson Education, 3rd ed.

Engberg. J. (2003). Introduktion til fagsprogslingvistikken. Århus: Systime. 1. udgave, 2. oplag.

Garner, B. (2002). The Elements of Legal Style. New York: Oxford University Press Inc. 2nd edition.

Gotti, M. (?). Investigating Specialized Discourse. Berlin/New York/Oxford: Peter Lang. 2nd revised edition.

Haigh, R. (2010). Legal English. London/New York: Routledge-Cavendish. 2nd edition.

McKay, W.R. , et al. (2011). Legal English—How to understand and master the language of law. London/New York: Pearson, 2nd edition.

FindLaw. (2012). “Exclusive Distribution Agreement.” FindLaw: Online source available September 2012 at http://contracts.corporate.findlaw.com/...

Documents

Genre conventions for contracts and contract writing