Ever wonder why contracts are so hard to read through?
A careful reader of a contract will note that there are seven different languages used. No, I am not talking about that fancy Latin that attorneys like to through in their explanations, but I am talking about the different types of English voice and style combinations that are used in different parts of the contract. One reason “legalese” is so hard to read through, is that contracts will typically use a different voice and style for each part of the contract. Ok, well attorneys that use 4 words when they could have used one don’t help either. Contracts are not written like books or even essays where they will have a certain flow to the document, rather they are written to be choppy and unambiguous. The next time you are reading through a contract look for the following languages and it will help you to understand the contract better. The first five of these languages will be explained briefly within this article.
- Language of Agreement
- Language of Performance
- Language of Obligation
- Language of Discretion
- Language of Prohibition
- Language of Policy
- Language of Declaration
- Language of Belief
- Language of Intention
- Language of Recommendation
Language of Agreement
The Language of Agreement is not typically used very much in a contract, but it is usually used at least once. Agreement Language can be found in the beginning of most agreements. A typical phrase using this language would look something like, “Wherefore the parties agree to the following terms:”. The use of this Agreement Language makes all other uses such as, “as the parties may agree” or “as agreed upon by the parties” or even phrases starting out with the “The parties agree that…” redundant. If drafters adhered to this style, the contract length might be reduced by 10%.
Language of Performance
The Language of performance will commonly use the present tense. The Language of will also describe what is effected by the signing of the agreement. Examples of these phrases include, “ABC Company hereby purchases all of shares outstanding from John Doe”, “Jane Doe hereby promises to limit the use of the property to gardening”, and “In this agreement Sampleton is not assuming any responsibility for the personal belongings of Customer”. Language of performance should be in the present tense and also refers to effect of placing the signature.
Language of Obligation
The Language of obligation is used to describe the duties imposed by the contract. This Language is typified by the use of the word(s), “shall”, “must”, and “has a duty to”. The clauses that contain this Language are the meat of the contract or the provisions that will make a party act or refrain from acting.
Language of Discretion
The Language of discretion is used to give describes the options available for a party to choose. Not all future events are certain and depending on the circumstances a party may choose one option over another. Examples of this language will appear in phrases such as “has discretion to”, “is allowed to”, or “may”. These phrases are best when used in the active voice (John may choose vs. the choice may be made by John) because the passive voice often requires more verbiage and is less clear.
Language of Prohibition
The Language of Prohibition is not the language used to pass the 18th amendment, it is language used to specify what a party shall not do. Prohibition Language is used a great deal in non-compete and non-disclosure documents. Examples of prohibition language include: “John Doe shall not disclose Company account information”, “party must not induce another to buy shares on party’s behalf”, and “neither party shall”. The active voice should is normally used to avoid ambiguity and wordiness.
Why Contract Languages Matter
Skilled drafters will use only one type of language at a time. This practice will make sure that words are not given double meanings and maintain a consistent style throughout the document. When you are evaluating an attorney or a drafter, look for the use of the Contract Languages. Consistency and clarity within the documents along with a drafter being able to explain the style used will give the client an idea of Drafter’s skill level.
Part 2 of The 10 Languages of a Contract will cover the Languages of Policy, Declaration, Belief, Intention and Recommendation.
The content of this article is based off of Kenneth A. Adams’
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