This article has been written by Shreyas Shetty, pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.com.
Table of Contents
Introduction
It is often said that lawyers speak two types of English, the Simple English that commoners understand and Legal English which is practically fancy gibberish which very few people (Read as – Lawyers) understand. For the longest time this divide was seen as a gap present due to the fact that the legal fraternity was made up of and always dealt with the upper class of society.
However, in the 20th Century there was an attempt made to break away from these ideals. As governments became more transparent and laws shifted from being in the grasp of few to that of the masses, the urgency of maintaining the old structure while breaking it down to simpler terms grew. This led to a movement which highlighted the need for proper language which was neither fancy nor oversimplified. We see this with the onset of the Plain English movement – a movement directed towards making law more understandable and accessible by easing up the language used. The movement, though starting in the western hemisphere is slowly starting to make progress in common law nations such as India.
In the present era, the need for usage of proper language has become more important than ever. Countries all around the globe are passing a slew of legislation regarding the need for ease of understanding of terms used in legal documents. In this article, we shall see and understand why it is important to use proper language in legal documents.
Drafting
A draft in the strict legal sense can be defined as:
“A rough sketch of a writing or document, from which the final or fair copy is made”
The term drafting is used to refer to the continued process of making drafts of a particular document until a final copy is prepared. An individual who drafts wills, conveyances, and contracts is known as a “Draftsman” whereas a “Dragoman” is an individual who drafts pleadings and other writings. For the sake of convenience in this article, the term “drafter” shall be used to refer to both roles in regards to drafting of legal documents. Drafting is an extremely important skill which can very well be considered to be the bread and butter of those associated with law -, from lawyers to judges, from registrars to clerks and so on. The emphasis on drafting at an early stage is very important, for law students are often under-appreciative of the true importance of developing this ability. Let us look at the general principles one must follow when drafting.
General Principles of Drafting
When an individual sits down to draft a particular legal document, they must keep the following points in mind:
Diligence concerning law and facts
Before one starts drafting any legal document, they must make sure that the document and the purpose it intends to serve must be within the confines of the law of the land. The drafter must check for any and all established drafts of the particular document, if available, in the form of Annexures and Schedules to the concerned Act and/or the Rules. In case the legal document is being drafted on behalf of a concerned party, the drafter must make sure that the facts as ascertained and the relief sought are properly understood. This prevents the drafter from drafting a document which in no manner accurately represents the exact requirements of the concerned party and will definitely cause immense confusion in the future.
Structure of the Document
Once the drafter is satisfied that the document and its purpose are within the confines of law and properly representative of the wishes of the concerned party, he must begin the process of drafting by deciding upon the structure of the document. This is important as it helps maintain a flow in the document and not be in any manner confusing or even worse voidable, which will defeat its very purpose. Law as a profession thrives on being orderly and thus a poorly structured document is often frowned upon.
Use of Proper Language
Proper, as a standalone legal term, can be defined as “fit, apt, suitable or appropriate”. Therefore, when one uses the term proper language, it can be said to use terms which are appropriate to describe the particular necessities of the legal document. There is perhaps no other profession in the world which places as much emphasis on words, their use and interpretation as the legal world does. Each and every clause, term and punctuation carries tremendous weightage so much so there have been numerous judgements delivered on the same. In the case of Kevin O’Connor, a dairy company had to pay a settlement to the tune of USD five million, all because its contract with the drivers missed a comma!
Avoid repetition of words and redundant passages
In the 18th Century, lawyers were paid as per the length of the document they drafted. This caused successive generations of law practitioners to adhere to the principle by adding a fairly significant amount of repetition of terms in the form of long and redundant passages in their legal documents so as to make it seem more intimidating, authoritative and “weighty” in the eyes of law. However, such instruments merely cause the Court and the parties’ utter confusion due to its opaque nature. The Supreme Court of India has even set aside a judgment of a subordinate court due to the judgement being far too confusing to understand.
Importance of Proper language in drafting
The scalpel of a surgeon can be easily compared to the pen of a drafter. Just as one wrong movement by the surgeon can cause the surgery to be a failure, the use of incorrect language by the drafter can very well doom the document. The use of proper language in a document not only makes it easier to conserve the essence of the document, but also represents it correctly when the document is called for inspection.
One of the biggest issues that a drafter faces if he does not define or use proper language in his drafts is that of ambiguity. Ambiguity of any term or definition can cause multiple problems to the legal document and even cause substantial issues to the party in whose favour it was drafted. Ambiguity falls against the very nature of law and the legal sphere which prizes precision and hence must be avoided at any cost. In the event that ambiguity arises in a particular legal document, following are the repercussions:
Voidability
While drafting a particular document, the drafter must make sure that the terms of the document in no manner lead to an interpretation which can cause that document to be considered null and void in the eyes of law. Drafters often tend to use synonymous terminology which can cause confusion in understanding the legal document. In the case of certain documents such as contracts under Indian law, there are very specific grounds which may cause it to be declared as void or voidable.
Future Litigation
Ambiguity in a legal document will almost certainly lead to possible litigation in order to interpret the document against the person in whose favour such document was made. Therefore, it is often said that one must make sure that the document is made as compact as possible while avoiding any possibility of ambiguity.
The Courts of law do not take kindly to ambiguity in documents, especially in the case of contracts. In Contractual Law, in the event of any term or clause having more than one interpretation, the doctrine of “Contra Poferentem” is used. This doctrine finds its roots in British common law where such ambiguity is often used against the party who wishes to enforce it. The doctrine is used when the deciding authority, court or tribunal feels that in a particular contract-
- There is a gap which needs to be filled in order to correctly understand or appreciate the term or clause in question;
- The term or clause in question are ambiguous so as to have multiple interpretations different from what was originally intended by the drafter.
Ensuring use of Proper language while drafting
After seeing the massive impact of incorrect language being used while drafting, one must not get disheartened. The steps to avoid such pitfalls are rather simple as long a one follows them dutifully. They are as follows:
Proper definition of key terms
The first and the most important step while using proper language while drafting is that the drafter must, at the very start of the document, define key terms that shall be used throughout the document. Terms such as that used to refer to parties, the object of the document and other specifics that the document relies heavily upon must be well defined keeping in mind the law applicable to that document. For example, the term ‘consideration’ in a contract, unless specified as otherwise under that particular contract, will have the same definition as laid down under Section 2(d) Indian Contract Act.
The drafter must avoid leaving terms used in the normal course of business undefined for they will certainly cause an issue. The United Kingdom Supreme Court while dealing with the question of ambiguity in the Capita Insurance Services case, constrained the scope of interpretation wherein it stated that more weight must be given to contractual context rather than that used in the business parlance.
Compact and concise language
The use of proper language while drafting is limited to it being apt and appropriate for the purposes of the legal document. The drafter must restrain from fancy language while drafting a particular document. Short and compact sentences detailing the nature of the document is ideal as not only does it save time, but also leaves all parties clear of the contents and object of the particular document. Moreover, if the drafter is to over-punctuate or use a long stream of words and phrases, he ends up giving the opposing party more ground to challenge the validity and interpretation of the document. A key skill any drafter must develop is to be exhaustive with as minimal use of legal terms as possible. To be clear and precise while maintaining the clarity and structure of the document is the sign of a truly accomplished drafter.
Avoid usage of synonymous terms
The drafter must avoid using synonyms of such key terms interchangeably throughout the draft. In the eye of law, only one term can be used to refer to a particular object of that document and using a synonymous term will be held to refer to another object unless specified under that document. However, irrespective of being defined, such use of synonymous terms to refer to the same part of the document will undoubtedly cause a lot of confusion and is hence best avoided.
Conclusion
As the world moves towards greater accessibility and bringing down the barriers between those who practice law and those for whose benefit the laws were made, the clamour for use of proper and simple language in legal documents grows. Countries such as the United States have even passed legislation in order to direct executive agencies to use simple and proper language while drafting documents. In the European Union, we see the impact in the form of one of the compliances companies have to give regarding their privacy policy under the General Data Protection Regulation (GDPR).
In India, while we have had courts put aside judgements for being too convoluted as seen earlier, we still view Shakespearean prose with rose tinted glasses. However, there has been progress made towards such reformation. The Vidhi Centre for Legal Policy even put forth a manual for enthusiastic drafters to consider as they draft legal documents. However, unless the Indian legislative takes concrete steps towards use of proper and simple language in drafting documents, the process will happen at a snail’s pace.
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