August 22, 2005

Two For One Special -- Or, Legal Writing

One argument that plain-English legal drafters often face when cleaning the cruft out of old contractual boilerplate is that the old language is somehow more "precise."

Take, for example, the familiar phrases "due and payable" and "null and void." They are so common that ordinary lay people bandy them about when trying to "formalize" a business arrangement.

Yet a quick look at the respective terms' definitions reveals that these are needless dualisms. The words mean basically the same thing.

Of course, give a clever lawyer two words and she'll argue that they have different shades of meaning. After long use, there will be a strong reflex against deleting "due and payable" and substituting the simple "due."

Which is why it is very refreshing to run across a legal opinion like this one every now and then. This judge not only "gets" plain English, he explains one of the reasons why legal English frequently uses two words where one will do. Here's how he smacks down a lawyer for trying to argue that there is a difference between "free and clear" and simply "clear" title.

"Monfort contends, 'Although a "clear title" is one that is not subject to any restrictions, the case at bar involved a "free and clear" title, which is the same as a marketable title.' So, according to Monfort, a free and clear title is worse than a clear title. Say what?

"Would that Harold had not lost the Battle of Hastings.

"Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

"So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here - an assertion that they somehow have different meanings.

"The Norman Conquest was in 1066. We can safely eliminate the couplets now....

"Nine hundred years later, courts in Ohio are still dealing with the consequences of the Norman invasion. We can only hope that some day logic will prevail over silly tradition."

Would that there were more judges like Judge Painter. And more lawyers that would think rather than merely ape what previous lawyers have always done.

Posted by JohnL at August 22, 2005 09:52 PM | TrackBack
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