Friday, August 8, 2008
Plain English
Legal agreements do not need to be written in Dickensian English nor studded with Latin words and phrases. On the contrary, they must accurately convey the precise intention of the parties in current, commonly understood language. One reason for using irritating 'small print' is that contracts are too wordy. This has the double impact of making them illegible and difficult to comprehend for most people. Some legal systems have embraced the principle of 'plain English' which addresses these issues. American contracts are still often wordy and complicated while those in Australia are generally not. In South Africa we lie somewhere in the middle. The doctrine of plain English applies to legislation too. It is our right and duty to express legal relationships in accessible language. Practitoners generating cumbersome contracts are not serving their clients.
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8 comments:
yes but wil practitioners agree?
hi there!
I think that speaking legalese is, to some greater or lesser extent, a 'barrier to entry' that is perpetuated by legal practitioners in order to keep out people who don't buy-in to the practices that they preach. As a consequence I am somewhat skeptical of whether your idea might catch on. It is also sometimes possible that legal-speak can be useful in terms of nailing down the exact meaning that someone is going for. I am not entirely sure if this assertion is true, but I think it could be...
Hi Simon, yes you're right about the barrier put up by the profession, but the doctirne has been embraced successfully elsewhere, mainly Canada and Aus. In the latter, this applies also to legislation. As regards the point on complexity, this is seldom a good reason as it is invariably possible to state intention in 'normal' lanagauage (unless of course the profesion is presuming to know the intention better than the parties themselves...) - thansk for the participation!
A well-argued case for plain English, Reinhard!
I agree with what Simon is saying about the 'barrier to entry'. (There is also the fact that lawyers can charge a client for drafting a document, and then charge them again for explaining it.)
Legal-speak helps lawyers understand each other -- most of the time. However, with most legal agreements there's usually a consumer involved -- someone who has less power and less expertise than the 'seller'. In these cases I think it's immoral to use anything other than plain language.
In the UK and the rest of the EU there is already legislation in place to protect consumers from 'unfair' contracts. The definition of 'unfair' extends to the language used, which has to be 'plain and intelligible'.
Where there isn't a legal requirement, big organisations need to lean on their lawyers and make them use plain language out of respect for the customer. There are marketing advantages in doing this.
There are marketing advantages in doing this. Excellent point. Plain English, like mediation, makes good business sense!
Here is an example of 'legal' gibbersih and a suggested plain English translation
Before
Both parties agree to respect and safeguard the intellectual property rights of the other and undertake to, in no way whatsoever, divulge or disclose any information, methodology or material which could be interpreted as proprietary or confidential, or which could in any way undermine the parties’ competitive positions with respect to either local or foreign competitors, unless express permission to do so is given in writing from the nominated representatives of the respective companies
After
The parties will
• respect each other’s intellectual property; and
• not disclose any confidential information without written approval.
There is a great need for plain english in south african legislation and legal documents generally. Complex, inaccessible language is inappropriate at the best of times but especially in an emerging economy within a diverse society!
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