By the end of this to:

How to Comply with the Rules of Legal Drafting

By the end of this to:

yc)u will have learned how

1. measure a translation accurately

2. expand intuition into cognitively-based rules 3. apply the correct transfer strategy

4. use some useful translation techniques 5. preclude translation errors

6. employ some problem-solving techniques

7. achieve a communicatively-effective inter-lingual transfer

8. comply with the rules of legal drafting

9. respond quickly to some basic terminology

10. go to the right source when needed.

General

The Language of Legal Documents POINTS TO REMEMBER From: 'Investigating English Style'

By: David Crystal & Derek Davy

Whoever composes ( or translates) a legal document must take the greatest pains to ensure that it says exactly what he wants it to say, and at the same time gives no opportunities for misinterpretation. When a document is under scrutiny (in a court of law), attention will be paid only to what, as a piece of natural language it appears actually to declare: any Intentions of the composer (or the translator) which fail to emerge clearly are not usually considered in arriving at what the document means, and if the composer ( or the translator) happens to have used a language which can be taken to mean something other than he intended, he has failed in his job. Legal language has many oddities that are clear evidence of the kinds of effort that have been made. Of all uses of language legal language is perhaps the least communicative, in that it is designed not so much to enlighten

languageusers at large as to allow one expert to register information for scrutiny by another. This is another factor which has provided oppo11unities for unusualness. Legal writers know that their productions are for the

benefit of someone as familiar with the jargon as themselves, and

consequently they have no need to bother much about the simpler needs of a general public. Neither the lawyer nor his legal draftsman will sit down to think up the contents of a legal document from scratch. For each species of transaction there has developed a I inguistic formula - or rather collections of such fo,mulae- which are known to do the job adequately, having been subjected to long and thorough testing before the courts. Therefore, much legal writing is by no means spontaneous but is copied directly from '·Form Books", as they are called, in which established formulae are collected. ^It is essentially a visual language, meant to be scrutinized in silence. During the course of its development legal English has had to rub shoulders with and sometimes give way to both French and Latin.

Layout

A !~gal document is generally characterized by an unbroken format,

P_art~~ularly with the intention to defeat fraudulent deletions (by providing no

ti ~dnion for spaces) and additions (by leaving no space into which they

might _be squeezed). In fact it was quite common for draftsmen to compose

an entire document in th ^r f . I -

h e ,orm o a singe sentence. Even today, documents

t at have been draft d . I

e wit 1out paragraph divisions are occasionally to be

found, and long, thinly punctuated sentences are the rule rather than the exception. But this is not to say that legal English any longer consists of undifferentiated rnasses of print. In general there has been a tendency to make more and rnore use of layout and other graphetic and graphological devices as a rneans of revealing structure, content and logical progression.

The Syntactic Level

Sentences tend to be extremely long. It is a characteristic legal habit to

conflate, by 1neans of an array of subordinating devises, sections of language which would elsewhere be much more likely to appear as separate sentences.

As a result, legal sentences are usually self-contained units which convey all the sense that has to be conveyed at any particular point and do not need to be linked closely either to what follows or to what has gone before.

Almost the only formal linkage to be found between the long and

selfsufficient sentences is the repetition of lexical ite1ns. In almost all other varieties too much repetition is regarded as tiresome. It is often reduced by the use of anaphora, in which a substitute word - for instance one of the pronouns he, she, it or they - replaces, or, to put it another way, refers back to a lexical item that would otherwise have needed repeating. Some

anaphoric devices, such as forms of the verb do, may substitute for stretches of language larger than a single lexical item, replacing whole clauses, or sections of clauses, and some, notably the demonstratives this and that, are commonly used to refer to considerable stretches of language, perhaps

comprising a number of sentences. The trouble with substitutes of this kind, however, is that they can often look as though they are referring back to an item other than that which the writer had in mind, producing ambiguities and confusions which would be of very little consequence in conversation - or even m a good deal of written language - but quite intolerable in a legal document.

··· ... .

TERMINOLOGY AND LINGUISTIC PECULIARITIES

...................... -................................... -... .

Terms of art

Legal English, in common with many other professional languages, employs a great deal of terminology that has a technical meaning and is not generally

familiar to the layperson . These are sometimes referred to by lawyers as 'terms of

art'.

Foreign terminology

In addition, a number of Latin and French words and phrases (such as inter alia, mutatis mutandis, ad hoc and force majeure) are in regular use in legal

English. While these should not be overused, a number of them are regarded as indispensable by lawyers because they express a legal idea much more succintly than could be achieved in English. For example, the phrase inter alia is

sometimes rendered in English as 'including but not limited to'.

Doublets and triplets

There is a curious historical tendency in legal English to string together two or three words to convey what is usually a single legal concept. Examples of this

include null and void, fit and proper, perform and discharge, ^dispute, controversy or claim, and promise, agree and covenant. These are often

called 'doublets' or 'triplets'.

These should be treated with caution, since sometimes the words used mean, for practical purposes, exactly the same thing (null and void); and sometimes they do not quite do so (dispute, controversy or claim).

Modern practice is to avoid such constructions where possible and use single word equivalents instead. For example, the phrase ^{give, devise} and bequeath

could be replaced by the single word give without serious loss of meaning.

However, the pace of change in legal usage is slow, and as a result ^it is still quite common to see certain typical doublets and triplets in certain legal documents.

some of the most common of these are listed below (with suggested equivalents

in brackets).

Doublets

Able and willing

Agree and covenant All and sundry

Authorise and direct

Cancelled and set a s ide custom and usage

Deem and consider Do and perform

Due and owing

Fit and proper

Full and complete

Goods and ^chattels

Keep and maintain

( = ab le) ( = agree)

( = al l)

( = authonse OR di rect) ( =cancelled )

( = c ustom) ( = deem) ( = perfo rm) ( = owing )

( =fit)

( = complete) ( = goods)

(=maintain}

Known and described as Legal and valid

Nu\\ and void

Object and purpose Order and direct

over and above

Part and parcel

Perform and discharge Repair and make good Sole and exclusive

Terms and conditions Touch and concern Uphold and support

(==known as)

(==valid)

(=Void)

(=object _OR purpose)

(=order)

(=exceeding)

(=part)

(=perform _OR discharge)

(::::repair)

(=sole OR exclusive)

(=terms)

(=concern)

(=uphold)

Triplets

cancel, annul, and set aside

communicate, indicate or suggest Dispute, controversy or claim

Give, devise and bequeath Hold, possess, and enjoy Pay, satisfy, and discharge

Possession, custody, and control Promise, agree, and covenant Repair, uphold and maintain way, shape or form

(=cancel)

(=communicate) (=dispute)

(=give) (=hold)

(=pay)

(=possession OR custody OR control) (=promise OR agree)

(=repair OR uphold OR maintain)

(=way)

Here-, there- and where- words

. ^- .. .... .... ···• .. .. .... . . ... .. . .... . . ..

words like hereof, thereof, and whereof (and further derivatives ending in -at, -in, -after, -before, -with, -by, -above, -on, -upon, etc.) are not often used in ord i nary English. They are still sometimes used in legal English, primarily as a way

of avo iding the repetition of names of things in the document - very often, the document itself.

For example:

the parties hereto instead of:

the parties to this contract

or

tn e ^{r J rov1s1on s} co11tau1ed t,ere,nafter

1n stead of:

the orov1sions cnntained to la ter on , n this contract

However, in most cases the use of such words is strictly unnecessary or can be rendered unnecessary by the use of definitions. For example, if there is likely to be doubt about the matter, the parties can be defined, in a definitions section, as 'the parties to this contract'. In most cases, however, the meaning of words and phrases can be gathered from the context in which they are placed. Here-, there- and where- words persist in modern legal usage largely as a consequence of legal tradition rather than usefulness.

Here is a list of some of these words and the way in which they are used. It should be noted that the list is not exhaustive.

Hereafter means 'from now on or at some time in the future'. For example, 'the contract is effective hereafter'.

Hereat means

'at this place or point' or

'on account of or after this'. For example, 'hereat the stream divided'.

Hereby means 'by this means; as a result of this'. For example, 'the parties hereby declare'.

Herefrom means 'from this place or point'. For example, 'the goods shall be collected herefrom' .

Herein means 'in th is document or matter'. For example, 'the terms referred to

herein'.

Hereinabove means 'previously in this document or matter'. For example, 'the products hereinabove described'.

Hereinafter means 'later referred to in this matter or document'. For example, 'hereinafter referred to as the Company').

Hereinbefore means 'previously in this document or matter' . For example, 'the products herein before described'.

Hereof means 'of th is matter or document'. For example, 'the parties hereof' ,

Hereto means 'to this place or to this matter or document'. For example, 'the parties hereto'.

Heretofore means 'before now'. For example, 'the parties have had no business dealings heretofore'.

Hereunder means 'later referred to in this matter or document' . For example, 'the exemptions ref erred to hereunder'.

Herewith means 'with this letter or document'. For example,

enclose herewith the plan'.

Thereof means 'of the thing just mentioned'. For example, 'The contract was

s i gned on 1 May 1999. The parties thereof ... '

Thereafter

means 'after that time'. For example, 'The products shall be transported to The Grange. Thereafter, they shall be stored in a warehouse.'

Thereat

means

at that place or

on account of or after that. For example, 'thereat, payments shall cease'.

Thereby

means 'by that means; as a result of that'. For example, 'the parties thereby agree'.

Therein

means 'in that place, document or respect'. For example, 'The parties shall refer to the contract dated

May

It is agreed therein that ... '

Thereinafter

means 'later referred to in that matter or document'. For example, 'there inafter,

is agreed that ... '

Thereof means 'of the th i ng just mentioned'. For example, 'Reference is made in paragraph

to the contract dated

May

The parties thereof agreed t hat . . . '

Thereon means 'on or following from the thing just mentioned' . For example, 'The machine rests on a wooden block. There is placed thereon a metal

bracket ... '

Thereto means 'to that place or to that matter or document'. For example, 'the

p a rtie s t he r eto '.

Therefor means 'for that'. For example, 'the equipment shall be delivered on

13

September 2003. The company agrees to pay therefor the sum of $150,000'.

Therefor should not be confused with 'therefore' which means 'for that reason'.

Thereupon means 'immediately or shortly after that'. For example, 'delivery shall take place on 13 September 2003. Thereupon the equipment shall be stored in the Company's warehouse'.

Whereabouts means 'the place where someone or something is'. For example,

'the company shall be kept informed as to the whereabouts of the products'.

Whereat means

which '. For example, 'The seller attempted to charge extra

interest on late payment, whereat the buyer objected'.

Whereby means

wh ich'. For example, 'the contract dated

May

whereby the Company agreed to purchase the products'.

Wherefore means 'as a result of which'. For example, 'the buyer breached the contract, wherefore the seller suffered damage'.

Wherein means

in which , or

in which place or respect. For example, 'the contract dated

May

wherein it is stated that ... '

Whereof means 'of what or of wh ich '. For example, 'the company one of the

directors whereof is a fo reign national'.

Whatsoever, wheresoever and · howsoever

.. . .. . . ^. . .. . . .

In addition to the words listed above, you may also encounter the words

whatsoever, wheresoever and howsoever. These have extremely _limited practical meaning and exist as a result of legal tradition only.

Whatsoever means 'whatever', i.e. 'no matter what' in contractual contexts.

Wheresoever means 'wherever', i.e. 'in or to whatever place' in contractual contexts.

Howsoever means 'however', i.e. 'in whatever way or to whatever extent' . These words are occasionally used together; for example, in the following sentence :

Th r s / 1n1 1 ta t1un sha ll a {]ply in a ny sit ua tion whatsoever, whereso ev e r an d

nowsoeve, arising .

T he word whosoever may also be encountered. This simply means 'whoever'.

Hence, whence and thence

. . ^•· .... .. . .

The words hence, whence and thence, and the derivatives henceforth

and thenceforth are all archaic forms in ordinary English, which are however still occasionally seen in legal English. The ir meanings are briefly outlined

be low.

Hence means ⁽¹⁾ for this reason; and ⁽²⁾ from now on.

Henceforth means from this or that time on.

Whence means ⁽¹⁾ from what place or source; ⁽²⁾ from which or from where;

( 3 ) to the place from which; or ⁽⁴⁾ as a consequence of which.

Thence means ⁽¹⁾ from a place or source previously mentioned; ⁽²⁾ as a c onsequence.

Thenceforth means from that time, place or point onwards.

-er, -or and -ee names

L egal English contains a large number of names and titles, such as employer and employee in which the reciprocal and opp . osite nature of the relationship is

indicated by the use of -er/-or and -ee endings. These endings derive from Latin.

In the example given here, the employer is the one who employs the employee.

Hence, the employee is employed by the employer.

H ere are some further examples that you may have encountered:

Assignor 1 s a party who assigns ( tra nsfer s ) s ome th ing to a nother party.

Assignee is th e party to w h o m something 1 s assign e d.

Payer is a oa,t y ^{w ho ma kes a pa yrn ent :o ano} ther party.

Payee

s tt

c) p:

n v ^t n

r

or' ·; pay

n c n t is rn ad c:.

Promisor : s a r-1c1rty ^{vvl - i c:} --r ak es :: pr on11 sr to Jnothe r pa rty . Promisee 1 s t1 ~ 1e 1Ja r-ty to w· '. on 1 a pro1 ri1 se 1s rnad e .

Representor 1s a party w ho , 11 a k es a co ntractua l re prese ntation to anothe r

party.

Representee 1s ttle party to w nom a contractual re pre se ntation is made.

Transferor is a oarty wh o tra nsfers s omethi n g t o another party.

Transferee is tr1e party to whom s omet hing 1 s transferred.

Note that these words are not always used in the way the examples given above might lead one to expect. For example, a guarantor is someone who provides a guarantee. However, the person to whom a guarantee is given is known

technically as the principal debtor, not the guarantee. The guarantee is the

document by which the secondary agreement that constitutes the guarantee is

made.

unfamiliar pronouns

unfamiliar pronouns represent an archaic usage 1n legal English , and include such formulations as the same, the said, the aforementioned, etc.

The use of such pronou n s 1n legal texts is interest ing since very frequently they do

not replace the noun - wh ich 1s the whole purpose of pronouns - but are used to

supplement them . For example, the said John Smith.

ordinary words In unusual contexts

Apparently ordinary words are sometimes found in unusual contexts in legal English and have different meanings in those contexts.

For example, the familiar term consideration refers, in legal English, to contracts, and means 'an act, forbearance or promise by one party to a contract that

constitutes the price for which the promise of the other party is bought' (Oxford Dictionary of Law).

Other words found in unusual contexts in legal English include:

• construction (interpretation);

• redemption (used in relation to the repayment of debts secured on property);

• furnish (to provide e.g. documents);

• hold (the application of a legal principle in court proceedings, by a judge);

and

• find.

ABBREVIATIONS

• • • • • •• • • • • • • . . • • • • .. • • • • • • • •• • . . .... . . .... . .. . . .... l" . .. . . . . ... .. ... . . . . ...... . . .. . .. . ... . . ... ~ • • •• • • •• • •• • • • • • • • • •• • • • • • • • • •• •• • • • • •• • •• •• •• • • •• • • , . • •• • • • •

There are two kinds of abbreviations. The first kind is the acronym. An acronym is made from the initial letters or parts of a phrase or compound terms. It is usually referred to as a single word. For example, radar= radio detection and ranging.

The second kind is an initialism, which is made from the initial letters or parts of a phrase or compound term. These are usually referred to letter by letter rather than as a single word, e.g. USA = united states of America.

In general, those abbreviations that refer to an entity, such as UK, USA,or NATO

should be capitalised without dots between the letters.

Those abbreviations that are used as grammatical shorthand, such as e.g. and i.e . . are usually written in lowercase letters with dots between the letters.

There are also certain terms that are referred to in speech as a single word, but which are capitalised in writing. For example, ^NATO= North Atlantic Treaty

Organization.

Here is a list of some common abbreviations and their usages:

AGM = Annual General Meeting

a.k.a. = also known as ('John Smith a.k.a. King of Style') a.m. = ante meridiem ('before noon')

AOB = any other business (often used in meeting agendas)

82B = business to business

B2C = business to consumer

cc = carbon copy (used to show that a copy of a letter has also been sent to another person or persons).

CEO ₌ chief executive officer

CGT = capital gains tax c.f. = compare(d), with

c.i.f. = cost, insurance, freight contract

c.o.d. = cash on delivery

EC

: e.g.

. enc : etc

EU FBI f.o.b

· GATT GBH GM GmbH

= European communities

= exempli gratia ('for example')

= ^enclosed

=etcetera

= European Union

= Federal Bureau of Investigation

= free on board contract

= General Agreement on Tariffs and Trade

= grievous bodily harm

= genetically modified

= German business vehicle equivalent to the c . ommon law limited

company _(Ltd.)

GMT = Greenwich Mean Time

GNP ⁼⁼ gross national product HR ⁼ Human Resources

Ibid = ibidem ('in the same source')

ID = identification

i.e. = id est ('that is to say') Inc = incorporated (USA) IOU = I owe you

IPO = Initial Public Offering (of shares of a company)

IT = Information Technology

Ltd = limited company ^(UK)

MD ⁼ managing director

NATO ⁼ North Atlantic Treaty Organization NB ⁼ nota bene ('note well')

p.a. = per annum

PA = personal assistant

PC = (1) personal computer; (2) politically correct; (3) police constable p.c. == per cent

pie = public limited company (UK)

p.m. ⁼ post meridiem ('afternoon')

p.p. = per procurationem (used when signing a letter on someone else's behalf)

PO = post office

PPS = post postscript

PR = public relations

PS = postscript

PTO = please turn over