We all enter into agreements regularly, whether it is a negotiated agreement or a retailer’s standard terms and conditions. Most of the time, people do not understand many (or even most) of the terms that they agree to. Why? Simply because many agreements drafted by lawyers are full of legal jargon and complex, archaic words that many people do not understand. Even lawyers often have to read an act, a judgment, or a horrible agreement a second or a third time to really understand the meaning.
many agreements drafted by lawyers are full of legal jargon and complex, archaic words that many people do not understand
We are big fans of legal writing in plain language and we always try to draft in plain legal language. When it comes to legal documents (including agreements) the most important benefit of writing in plain language is probably that all the parties to the agreement (and not only the lawyers) actually understand all the terms and know what they have agreed. You want your legal documents in plain language because the benefits are significant and in fact soon the law will also require them to be so. The Consumer Protection Act (which we anticipate will be enacted this year) specifically requires consumer agreements to be in a plain understandable language and you need to make sure that your agreements will comply with this requirement.
However, when drafting in plain language or translating documents into plain language, it is important to make sure that:
- You do not reduce or water down rights
- You do not leave out important provisions
- You do not create ambiguities
- The meaning stays clear
There are two approaches that one can adopt when drafting legal documents: either:
- a content rich; or
- a content lean approach.
A content lean approach should in most instances be the objective, which automatically results in plain English terms – understandable to all the role players. With this in mind, we always try to reduce content where possible, but without creating the problems mentioned above. There is of course a risk associated with the content lean approach – an issue may arise that is not specifically dealt with in the terms, leading to a dispute. We ensure that important terms are dealt with in sufficient detail to avoid unnecessary disputes.
There are certain words and terms that have a very specific meaning in law and they reside in the legal domain – they must not be changed
When writing in plain legal language, legalese or jargon is being translated into ordinary language that everyone can understand. However, you have to be careful. There are certain words and terms that have a very specific meaning in law and they reside in the legal domain – they must not be changed. The following are just some examples of legal terms that have a very specific meaning in law:
- Prima facie – it means “at first site“, but the phrase “prima facie” has developed a special meaning in law – it should not be changed to it’s English translation
- Indemnity – this cannot be changed to “pay you back” or “reimburse you“
- Warranty – sometimes people are tempted to change “warrant” to “agree“
- Intellectual Property Rights
- Moral Rights