Metodología

Traditional legal drafters slip easily into the passive, instinctively more at home with the indirect, formal style it exudes. Yet all writing texts – including legal writing texts – say that the active voice communicates more effectively.

The active is more direct, driving home the message. The passive is less direct, muddying the message.

The passive can also obscure who is to do something, causing the drafter to overlook important matters. For example, the constitution of a company

56Ibid., pp. 204, 201, 213, 205 respectively.

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may provide: ‘A meeting of the Board is to be called each month.’ Who is to call the meeting? If this clause had been drafted in the active voice, that question would have been obvious to the drafter. The active voice requires the drafter necessarily to identify the person with not only the power but also the duty to call the meeting. That could be important in deciding whether the meeting has been called validly – that is, by the right person.

Some texts imply that drafters should never use the passive, but that is going too far. On occasions the passive is convenient – for example, where the doer of an act is intentionally left unstated. Our point is that lawyers tend to write in the passive instinctively. It is better to avoid the passive, except where the drafter makes a reasoned decision to use it.

Deeming

‘Deeming’ is common in legal documents. It is generally used to create a legal fiction: a thing is deemed to be something else, or an event is deemed to have occurred, despite evidence to the contrary. To a non-lawyer, the device must seem contrived. To a lawyer, however, it is second nature. Indeed, the more openly fictional a statement, the more readily lawyers accept deeming.

So a lawyer can draft, with hardly a second thought, ‘In this contract, black is deemed to be white’, even though in the real world the statement is patent nonsense. The deeming makes it acceptable.

The main problem with ‘deeming’ is the artificiality it produces.⁵⁷This impairs comprehension. In words befitting a Lewis Carroll character, Cave J said in 1891:

Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless . . . it is to be deemed to be that thing.⁵⁸

Lawyers also use ‘deemed’ to mean ‘considered to be’, or ‘adjudged to be’, or simply ‘is’. Here the usage is not so much to create a legal fiction as to

57See Burrell & Kinnaird v Attorney General [1937] AC 286, HL.

58R v Norfolk County Council (1891) 60 LJ QB 379 at 380.

satisfy a state of fact. For example, a lease may provide that a tenant ‘shall be deemed to be in default’ if the rent is in arrears for seven days. What is meant is that the tenant is in default if the rent is in arrears for seven days.

The ‘deeming’ could be discarded.⁵⁹

Definitions

Stretched definitions

Often found with deeming provisions are stretched definitions. By

‘stretched’, we mean definitions that give a word a meaning beyond what the reader would expect. This unhelpful technique is particularly pernicious where the word has a well-understood lay meaning. Sometimes, the tech-nique produces unintended humour, as in Australian statutes that define

‘fish’ to include beachworm and ‘fingerprint’ to include toeprint.⁶⁰ The dangers of stretched definitions, whether or not in conjunction with

‘deeming’ provisions, are well-documented.⁶¹ They can impair commu-nication between drafter and reader. They can trap the drafter as well as the reader. And they are an easy source of ridicule, inviting caricature of lawyers’ language.⁶²Stanley Robinson and Reed Dickerson call stretched definitions ‘Humpty Dumptyisms’, echoing Humpty Dumpty’s scornful assertion: ‘When I use a word, it means just what I choose it to mean – neither more nor less.’⁶³

Stretched definitions overlook the reality that language is a form of com-munication based on convention and habit. To succeed, comcom-munication must evoke a response in the person to whom it is addressed. That response

59See Barclays Bank Ltd v Inland Revenue Commissioner [1961] AC 509 at 541 (Lord Denning).

60Fisheries Management Act 1994 (NSW), s 5; Crimes Act 1958 (Vic), s 464.

61See E. L. Piesse, Elements of Drafting, 10th edn (eds J. K. Aitken and Peter Butt, Sydney:

Lawbook Co., 2004), p. 49; Robinson, Drafting, p. 58; Dickerson, Fundamentals of Legal Drafting, 2nd edn (Boston and Toronto: Little, Brown and Co., 1986), p. 140.

62As in the spoof case of R v Ojibway (1965) 8 Criminal Law Quarterly, p. 137 (definition of ‘small bird’ stretched to include horse); Nada Shah v Sleeman (1917) 19 WALR 119 (definition of ‘domestic animal’ stretched to include camel).

63Lewis Carroll, Through the Looking Glass (Chicago: Wellington Publishing, 1989), p. 127.

For a legal analysis of this passage, see Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 914, HL.

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depends on the addressee’s existing store of usage, and that store of usage varies from person to person. For as Richard Robinson pointed out in his book Definition,⁶⁴a word is a human contrivance, and its meaning can only be what some person means by it. Words do not have an inherently correct meaning; there is no natural relationship between a word and what it refers to. To quote Justice Holmes’s famous aphorism, ‘a word is not a crystal, transparent and unchanged’, but rather is ‘the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used’.⁶⁵Nevertheless, most words in everyday usage convey a common core of understanding, and the reader’s task is made more difficult when a word with an accepted core of meaning is stretched to mean the unexpected.

Over-defining

Over-defining bedevils modern legal documents. It is a comparatively recent phenomenon. Drafters feel compelled to define every term, even terms that are used once only or in one clause only. The result is page after page of definitions. The document becomes long and unwieldy. The reader is forced to keep jumping between substantive provisions and definitions.

A definition is unnecessary if the meaning of the word or phrase is clear or can be readily ascertained from the context. Also, a word or phrase need not be defined merely because it is technical or unusual. However, if a definition is genuinely required, it should not be shunned merely because the term is used only once or twice.⁶⁶The practice has been condemned,⁶⁷but by no means deserves the scorn poured on it.⁶⁸

Sometimes definitions are used to define words or phrases that appear only in other definitions. This incestuous device eases the drafter’s task, but at the cost of irritating the reader.

To help reduce dependence on definitions, more use could be made of the parliamentary drafter’s device of describing rather than defining. To take an example from England and Wales, s 28 of the Crime and Disorder Act 1998 states:

64(Oxford: Clarendon Press, 1950), p. 37.

65Towne v Eisner 245 US 418 at 425 (1918).

66See, e.g. Fire and Rescue Services Act 2004 (UK), ss 19, 20, 32, 33.

67See Dickerson, Fundamentals of Legal Drafting, p. 150.

68See Robinson, Definition (Oxford: Clarendon Press, 1950), p. 80.

An offence is racially aggravated if –

The private drafter would almost certainly be drawn in a dictionary-type definition, such as:

‘Racially aggravated’ means . . .

Some commonly encountered definitions are strictly redundant because they are supplied by statute. For example, most common law jurisdictions have statutory provisions along the following lines:

r month means calendar month r person includes a corporation

r the masculine includes the feminine and vice versa r the singular includes the plural and vice versa.⁶⁹

Subject to a qualification mentioned below, to repeat the effect of these provisions is legally superfluous. And as we comment in our discussion of inclusive language in Chapter6, in a specially drawn modern document the formula ‘masculine includes feminine’ should be unnecessary.

In like vein, most common law jurisdictions have statutory provisions to the effect that the benefit of a covenant made with more than one per-son is joint and several.⁷⁰To state this in the document is also superflu-ous. In contrast, however, statute generally says nothing about the burden of a covenant made by more than one person. Hence it is common to see provisions spelling out the position for both the benefit and the bur-den. This achieves a nice symmetry, which can hardly be open to much criticism.

However, let us now add a qualification to this discussion. Sometimes it is desirable to indicate the intended meaning of words and phrases, even if they are enshrined in statute. Lay readers cannot be presumed to know the statutory provisions. A document ought to be as comprehensible as possible on its face, and as complete in itself as it can reasonably be. As so often, this calls for fine judgment by the drafter. Documents can be so cluttered with legally superfluous material that they verge on the absurd.

69In England and Wales, the provision is found in s 61 of the Law of Property Act 1925.

70In England and Wales, the provision is found in s 81 of the Law of Property Act 1925. For the meaning of ‘joint and several’, see Chapter7.

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Disguise of an operative element

A deviant form of definition is the ‘stuffed’ definition.⁷¹By stuffed, we mean a definition that carries some operative element. An example, taken from a contract for the sale of land, is:

‘Completion date’ means 30 June 2006, and on that date the purchaser must pay the purchase price and relieve the vendor of liability for all rates and taxes payable on the property.

This goes further than merely defining the term ‘completion date’. In the guise of a definition, it imposes contractual obligations. The result is to hide operative obligations in a part of the document where the reader does not expect to find them. The technique does not render the document invalid, but it irritates the reader and hinders efficient understanding.

Again, consider the following definition from a trust deed:

‘The specified period’ means a period beginning at the date of execution of these presents and enduring for eighty years and the said number of years shall be the perpetuity period applicable hereto.

The purpose here is to define the perpetuity period applying to the document as the ‘specified period’. It would be better to declare in a main clause simply that the ‘specified period’ is the perpetuity period, and then to define the specified period as ‘80 years beginning today’. Better still would be to remove the reference to ‘specified period’ altogether, and simply say:

The perpetuity period applicable to this deed is 80 years beginning today.

Excessively detailed definitions

Not content merely with incorporating definitions of questionable necessity, many drafters attempt to extend them to cover every conceivable circum-stance. This results in definitions of excessive length and detail.

Excessively long and detailed definitions can be counterproductive. In attempting to be all-inclusive, the drafter may unintentionally omit some-thing which should have been included. The courts might then apply the maxim expressio unius est exclusio alterius (the expression of one thing excludes another; see Chapter2) and treat the exclusion as deliberate. The

71A Reed Dickerson phrase: Fundamentals of Legal Drafting, p. 151.

drafter’s excessive zeal has then served only to create loopholes. Lord Wilber-force alluded to this risk in Seay v Eastwood, a case dealing with legislation to control gambling. In the context of a statutory definition of ‘bookmaker’, he said that it was impossible to frame definitions to cover every variety of gambling activity: ‘attempts to do so may indeed be counter-productive, since each added precision merely provides an incentive to devise a variant which eludes it’.⁷²

‘Unless the context requires otherwise’

Drafters conventionally include in their definition clause the cautionary rider ‘unless the context requires otherwise’, or ‘where the context so admits’, or the like. The purpose is clear enough: to prevent difficulties of interpreta-tion if the drafter inadvertently uses a defined word in an undefined sense.

Two quite different views may be put about this practice. The first view is based on the premise that careful drafters always use a defined term in its defined sense. Drafting lapses of this kind should not occur – particularly in an era of word processors with search facilities, where every occurrence of a word can be hunted down and checked for consistency of use. On this view, the rider should be unnecessary.⁷³And, of course, its presence does not preclude litigation over meaning, because it leaves open the question whether the context in fact ‘requires’ or ‘admits’ a meaning different from the defined meaning.⁷⁴

The second view is based on the premise that the meaning of a word or phrase always yields to its context. A judge can find that the same word or phrase is used in different senses in the one document. In particular, a judge can find that a defined word or phrase is used in a non-defined sense. So whether or not the rider is used, a judge is free to interpret the document as if it were used. So there can be little or no harm in including it.

72[1976] 1 WLR 1117 (HL) at 1121.

73See David Mellinkoff, Legal Writing: Sense and Nonsense (St Paul, Minnesota: West Publish-ing Co., 1982), p. 24: ‘The formula abandons the client for whom the writPublish-ing was prepared and the reader to whom it was addressed. It leaves them to the tender interpretation of strangers. If you define, you create an important part of the context. It is your responsibility to adjust your definition to fit your context, or your context to fit your definition, or to forget about definition as a route to precision.’ For other objections, see Giles A. Morgan,

‘Interpretation Clauses: a Cautionary Tale’ (1996) 140 Solicitors Journal, p. 838 (‘where the context otherwise requires’).

74As in Blue Metal Industries Ltd v Dilley [1970] AC 827 (PC); Floor v Davis [1980] AC 695 (PC).

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We return to the topic of definitions in Chapter 6, where we consider their proper use in modern documents.