La Teoría Fundamentada

M o d e r n L e g a l D r a f t i n g

Reed Dickerson said that the legal drafter should use initial capital letters only where required by good usage, as for proper nouns.⁷⁹Other writers, though, have advocated the (sparing) use of capitals. Piesse, for example, suggests that the technique may help the careful reader.⁸⁰Thus, if a party to a document is a company, it can be referred to throughout as ‘the Company’, leaving ‘company’ without a capital for use if a company in general is meant.

The device of using a capital letter might possibly be helpful when (as in that example) the descriptive word is likely to be used also in a different sense:

the capital letter warns the reader that for the purpose of the document the word bears a particular meaning. A better practice, though, is to avoid the misunderstanding by calling the party something altogether different, such as ‘the supplier’.

In traditionally drafted documents, as we have seen, capitals are some-times used for complete words, to break up blocks of text: common examples are WHEREAS, TOGETHER WITH, PROVIDED THAT, ALL THAT, and the like. However, overuse of capitals in whole words or passages hinders fluent readers.⁸¹This is because the shape of a whole word in capitals is less distinctive than its counterpart in lower case.⁸²There is no justification for continuing the practice in modern documents, particularly as other devices exist for breaking blocks of text into manageable chunks.

Influence on interpretation

For readers unused to the convention, to define a term and then to draw attention to it by initial capital letters when it is used in the text may down-grade other expressions that do not receive the same treatment. Conversely, to use capital letters for terms that have not been defined tends to elevate the terms to a status they do not merit. Consider this clause:

This Mortgage incorporates the National and Provincial Building Society Mortgage Conditions 1983 Edition and the Rules and the Borrower (and the Guarantor (if any)) have received copies of the said Mortgage Conditions and the Rules.

79Fundamentals of Legal Drafting, p. 189.

80Elements of Drafting, p. 50.

81National Consumer Council, Plain English for Lawyers (London, 1984), p. 25.

82Martin Cutts and Chrissie Maher, Writing Plain English (Stockport: Plain English Cam-paign, 1980), p. 21.

In the building society mortgage from which this example was taken, the only defined terms were ‘the Borrower’, ‘the Guarantor’, and ‘the Society’.

Neither ‘Mortgage’ nor ‘the Rules’ was defined. (The word ‘mortgage’ also occurred later, in the phrase ‘by way of legal mortgage’.) The indiscriminate capitalisation produces a clause which at best is hard to read, and at worst may prove difficult to interpret.

In short, excessive capitalisation creates a wholly artificial atmosphere in a document, without appreciably increasing the reader’s understanding.

Significantly, modern parliamentary drafters rarely if ever assign capital letters to defined words or phrases in statutes or regulations. Private legal drafters could do well to follow their lead.

Provisos

‘Provisos’ have a long legislative history. For centuries in England, the term provided or provided that was used to introduce substantive provisions in legislation, as a contraction of the enacting formula it is provided [that]. This use has long ceased, but the term provided or provided that has survived, unique to legal writing. It has degenerated to a ‘legal incantation . . . an all-purpose conjunction, invented by lawyers but not known to or understood by grammarians’.⁸³

When properly used in modern legal drafting, provisos limit or qualify what has gone before. For this purpose, no particular formula is needed. In practice, however, provisos are typically introduced by formalistic phrases such as provided that, or provided however that. No legal precision would be lost by replacing these phrases with simple English words, like if or but or however.

To illustrate, a will might say:

I give my property to my children provided that they marry.

The drafter could dispense with provided that and use if or when. Indeed, it would be better to do so. As the will stands, it is unclear whether the proviso introduces a condition precedent or a condition subsequent. That is, it is unclear whether the gift is initially contingent, with marriage being

83E. Driedger, The Composition of Legislation, 2nd edn (Ottawa: 1976), ch. ix and p. 96.

M o d e r n L e g a l D r a f t i n g

a condition precedent to vesting, or initially vested but subject to divesting in the case of children who do not marry.⁸⁴An alert drafter could have used if to introduce a contingent gift; or could have used to be paid over when to introduce a vested gift (‘to be paid over to them when they marry’).⁸⁵

Provisos in practice

A true proviso, intended to qualify or limit what has gone before, has its place in modern documents. In practice, however, the technique is often abused. Rather than qualify or limit what has gone before, the self-styled

‘proviso’ in fact introduces information of equal force. It adds a parallel provision, inserting material that should have been drafted as a stand-alone clause. At best, this can cause difficulty of comprehension, for the reader is uncertain whether to assume that the proviso is intended to limit the preceding covenant (its proper function) or to introduce a separate covenant.

At worst, it can lead to litigation.⁸⁶Where the purpose is to introduce new material, the words introducing the proviso – provided that, or provided however that – should be struck out, and a new sentence begun.

A proviso can affect the burden of proof. A party wishing to bring itself within the ambit of a genuine proviso bears the onus of proof.⁸⁷For exam-ple, a lease may require the tenant to repair damage to the premises, with a proviso (that is, an exemption) for damage caused by reasonable wear and tear. A landlord who wishes to enforce the repair obligation must prove that the premises are in disrepair; but a tenant who wishes to take advan-tage of the exemption then bears the onus of proving that the disrepair is the result of reasonable wear and tear.⁸⁸However, this assumes that the proviso is a ‘genuine’ one. If, despite its ‘form’ as a proviso, the clause in substance is a stand-alone provision which introduces new material, the

84As in Re Cohn [1974] 3 All ER 928 (CA); Nicholls v Public Trustee (South Australia) (1945) 72 CLR 86.

85Hume v Perpetual Trustees Executors and Agency Co. of Tasmania (1939) 62 CLR 242. See F. V. Hawkins and E. C. Ryder, The Construction of Wills (London: Sweet & Maxwell, 1965), pp. 303–308; Barclays Bank Trust Co. Ltd v McDougall (2000) Law Society’s Gazette, 3 August, p. 39 (also reported at [2001] WTLR 23 (Rimer J)).

86As in Hely v Sterling [1982] VR 246.

87Vines v Djordjevitch (1955) 91 CLR 512 at 520; Minister for Immigration v Hughes (1999) 86 FCR 567.

88Haskell v Marlow [1928] 2 KB 45 at 59; Brown v Davies [1958] 1 QB 117 at 127; Wicks Farming Pty Ltd v Waraluck Mining Pty Ltd [1996] 1Qd R 99 at 103.

court will treat it as that and there will be no occasion to shift the burden of proof.⁸⁹

Provisos are frequently a product of the negotiation process. The docu-ment is drafted by A, the lawyer for one side in the transaction. The other side’s lawyer, B, needs to make a substantive amendment but does not want to renumber all the existing clauses. So B inserts a ‘proviso’, which by its nature is tacked onto an existing clause. A feels constrained by professional comity to leave the amendment as a ‘proviso’. Hence the text slips in as a proviso, when it should be put somewhere else.

To illustrate the points just discussed, consider the following clause from a lease of property in an earthquake zone:

The tenant must repaint the premises provided that if there has been an earth-quake the tenant must repair any structural damage.

Here the drafter has used the technique of proviso, not to qualify what has gone before, but to introduce an entirely new and stand-alone obligation.

It would be better to delete the proviso and divide the clause into two independent parts:

1. The tenant must repaint the premises.

2. If there is an earthquake, the tenant must repair any structural damage.

Again, consider the following provision:

All fixtures installed during the term of the lease by the tenant become the property of the landlord upon the expiry of the term PROVIDED THAT the tenant may remove its fixtures at the end of the term.⁹⁰

The meaning, or the purpose, of this clause is almost impossible to dis-cern. The first half (up to the proviso) seems merely to reflect the common law assumption that fixtures which a tenant affixes to the property are the landlord’s property unless and until the tenant removes them,⁹¹and that a tenant who wishes to remove them must generally do so before the lease

89Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 274–5; Commissioner of Stamp Duties v Atwill [1973] AC 558 at 561; Datt v Law Society of New South Wales (1981) 35 ALR 523 at 534.

90Adapted from Dick, Legal Drafting, p. 104.

91Bain v Brand (1876) 1 App Cas 762 at 770 (Lord Cairns).

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expires, otherwise the fixtures remain the landlord’s property.⁹²The second half (the proviso) seems to give the tenant an unfettered right to remove fix-tures at the end of the term: but this also merely reflects the common law right of tenants to remove their fixtures at or before the end of the lease.⁹³ Probably, the drafter intended the ‘proviso’ – despite being cast as a proviso – to be the main head of tenant’s right, and the opening words to limit the time in which the tenant can exercise that right. If so, it would have been much better to avoid the use of a proviso altogether, and reverse the order of provisions, thus:

1. The tenant may remove its fixtures at the end of the term.

2. Any fixtures not so removed remain the landlord’s property.

Conclusion

This chapter has highlighted some of the practices which modern drafters should shun. All the practices considered in the preceding pages have been developed and sustained over many generations, even centuries. They are stocked in plentiful supply in the arsenal of traditional legal drafters. But they are practices which non-lawyers find disconcerting, and which therefore hinder comprehension. They can be discarded without threat to precision or legal effect.

92It is otherwise where the tenant takes a renewed lease of the premises at the end of the current lease. In such a case, the tenant retains the right to remove until the expiry of the renewed lease: New Zealand Government Property Corporation v HM & S Ltd [1982]

QB 1145.

93Bain v Brand (1876) 1 App Cas 762.