Terms and Rules in Legal English

Chapter 4 Terms and Rules in Legal English

 

Articles

 

Articles in English include the, a and an. A is used when mentioning something for the first time( " a client walked into the office" ) .An is used in the same circumstances but only where the following word begins with a vowel( " an attorney walked into the office" ) . The is used when referring to something already mentioned before( " the client then sat down" ) ,or when referring to something that is the only one of its kind( " the sun" ) or when referring to something in a general rather than specific way( "the internet has changed our way of life" ).

 

In some circumstances, articles should be omitted. For example,when a sentence links two parallel adjectival phrases, the article should be omitted from the second phrase. For example; The judge ruled that Cloakus Ltd was a validly registered and (an) existing company. In addi­tion, when using certain abstract nouns in a general,conceptual sense,it is not necessary to use an article to precede the noun. For example: In the event of conflict between the definitions given in appendix 1 and the definitions given in the contract, the contract shall prevail. There is no need here to precede conflict with a,since conflict is used in a general conceptual sense. How­ever , when referring to a specific conflict, articles should be used, as in the opposing factions took part in the conflict.

 

Prepositions

 

Prepositions are words used with a noun or pronoun which show place, position, time or

 

 

 

 

 

 

method. Prepositions such as to, in,from, between,after,before, etc, normally come before a noun or pronoun and give information about how, when or where something has happened ( " she ar­rived before lunch" ,"I travelled to London"). The preposition between should be followed by an object pronoun like me,him or us instead of a subject pronoun such as I,she and we. It is therefore correct to say" this matter is between you and me" and wrong to say" this matter is be­tween you and I". The main problem for the non - native speaker is remembering which prepo­sition to use. There are no clear rules to follow in this respect,but some examples of common usages are set out below*.

 

The parties to this agreement •••

 

The goods must be delivered to the purchaser.

 

The commencement/termination of this agreement

 

The price list set out in Schedule 1 • • •

 

Royalties will be paid in accordance with this agreement for a period of five years.

 

The goods must be delivered within 14 days.

 

The Company agrees to provide training for service personnel.

 

The agreement may be terminated by notice.

 

An arrangement between the Seller and the Buyer •••

 

It is agreed that the goods will be collected from the Seller’s warehouse at 21 Redwoods Road.

 

Interest will be charged on any unpaid instalment after the expiration of a period of 28 days from the date hereof.

 

He was charged with murder.

 

The property at 2 Parker Street is sold with vacant possession.

 

It is important to note that in certain circumstances it may be possible to use more than one preposition, and that there may be small but important differences in meaning between them. For example,the sentence; The goods must be delivered within 7 days is subtly different from; The goods must be delivered in 7 days. The use of the word within makes it clear that the goods may be delivered at any time up to the seventh day,while the word in might imply that the goods should only be delivered on the seventh day. This minor linguistic difference could be critically important in a contract for the sale of goods.

 

Pronouns

 

A pronoun is a word used instead of a noun to indicate someone or something already men­tioned or known; for example,I,you, this, that. Pronouns are used to avoid repeated use of a noun. They are usually used to refer back to the last used noun.

 

Legal drafters have traditionally avoided using personal pronouns such as he, she, we, they,

 

Part One Basics of Legal English ““I 7   : :   J.   a   a   —

 

if a number of parties are mentioned in the document. Here is an example of a sentence made ambiguous by unclear use of personal pronouns: He arrived with James and John. John then con­tinued his journey by car. James stayed at the depot, and he followed John later. The modem trend, however, is to use pronouns where possible, as their use makes documentation less formal and intimidating. For example,"you must pay the sum of £ 100 per month to me" is easier for a layperson to understand than" the Tenant must pay the sum of £ 100 per month to the Land­lord" . However,their use is inappropriate where the aim of the drafter is to impress the reader with the seriousness of the obligations being undertaken, as pronouns often lead to a chattier and lighter style than is found in traditional legal documentation.

 

One aspect of pronoun use which is now highly relevant lies in the desire to avoid sexist language in legal and business English. A list of common gender - neutral pronouns and adjec­tives which can be used to avoid using sexist language is set out below;

 

 

any, anybody, anyone, each, every, everybody, nobody, none, no one, some, somebody, someone

 

Adjectives

 

An adjective is a word used to describe a noun or make its meaning clearer(eg,excellent, as in" an excellent horse" ). Some words in the English language have the ability to change parts of speech. For example,the word principal,often used in legal English,can be used as an adjective( "the principal sum" )or as a noun( "the principal instructs the agent" ). Some adjec­tives are described as uncomparable adjectives, meaning that they describe something which can only be absolute. Such adjectives cannot be qualified by words like most, more, less, very, quite or largely. For example,if a provision in a contract is void,it cannot be" largely void" or" more void" - it is simply void. A short list of uncomparable adjectives is set out below;

 

absolute, certain, complete, definite, devoid, entire, essential, false, final, first, impossible, inevitable, irrevocable, manifest, only, perfect, principal, stationary, true, uniform, unique, void, whole.   . x

 

Adverbs

 

An adverb is a word which modifies or qualifies a verb(e. g. ,walk slowly) ,an adjective (e. g. ,really small)ox another adverb(e. g. ,very quietly) . Most adverbs consist of an adjective + the ending - ly. There are a number of words which act both as adjectives and as adverbs, to which the suffix - ly cannot be added. These include;

 

alone, early, enough, far, fast, further, little, long, low, much, still, straight

 

Collective nouns

 

A collective noun is one that refers to a group of people or things (jury, government) . Such nouns can be used with either a singular verb( " the jury was made up of people from many dif- 8 P3 A Comprehensive Course in Legal English

 

------------------------------------------------- a-------; 

 

must also be singular,e. g. , "the firm is prepared to act,but not until it knows the outcome of the negotiations" (not" ••• until they know the outcome"). In general it is better to use the sin­gular when referring to collective nouns. The exception to this is where the plural is used to in­dicate that one is referring not primarily to the group but to all the individual members of the group(e. g. ,"the staff were unhappy with the changes that had been proposed" ). Here is a short list of collective nouns found in legal English;

 

board (e.g., of directors) , the Cabinet, class, club, committee, company, government, group,jury,majority,nation,parliament,party(a body of persons) ,the public,staff,team,union

 

Past tenses

 

One of the main difficulties experienced by non - native speakers in using tenses concerns which form of past tense to use in different situations. The subject is more complex than the guidance given below might indicate, but these notes cover the most common areas of difficulty.

 

Past - perfect or pluperfect tense refers to a past action which is completed before a more recent time in the past,and is formed using had. For example;In 1998 I lived in New York. In 1997 I had decided to move to the United States the following year. Simple past tense refers to completed actions which occurred in the past, and is formed with the ending - ed. For exam­ple ; I lived in New York. Past continuous tense refers to an action which occurred in the past and is not described as having been completed. For example -.In 1998 I was living in New York.

 

A common mistake made by non - native speakers is to use the past continuous when the simple past or past - perfect tense should be used. In legal contexts this can easily lead to ambi­guity. For example,to say" In 1998 I was working as a commercial lawyer" leaves it unclear as to whether you still work as a commercial lawyer.

 

Verb forms

 

The conditional form is used to express a condition or, to put it another way, to express that something is dependent on something else. For example-.

 

I would go if I felt better(I would in fact go if I felt better).

 

I could go if I felt better (I would be able to go if I felt better).

 

I should go if I felt better(I would in fact go if I felt better).

 

I should go if I feel better {I ought to go if I feel better in the future).

 

When used for the conditional, should goes with I and we, and would goes with you, he, she, it and they. However, this rule is often disregarded even by welleducated English native speakers. Consequently, using the wrong word is not a very serious error. A mistake often made by non - native speakers is to use the conditional instead of the subjunctive in a sentence in which both forms should be used. Consequently,the sentence," I wouldn’t try it if I were you" is often wrongly expressed as " I wouldn’t try it if I would be you".

 

 

were here today") ;3. to express what is possible(" if only that were possible!"). It is. usually the same as the ordinary form of the verb except in the third person singular (he, she, it) , where the normal -s ending is omitted; for example, you should say face rather than/aces in the sen­tence" the report recommends that he face the tribunal". The situation is slightly different when using the verb to be. The subjunctive for to be when using the present tense is be, whereas the ordinary present tense is am, are or is. For example," the report recommends that he be dis­missed" . When using the past subjunctive form of to £>e,you should use were instead of was. For example," I wouldn’t try it if I were you" .

 

Phrasal verbs

 

Phrasal verbs are phrases which consist of a verb used together with an adverb (e. g. , break down) or a preposition (e. g. , call for) or both(e. g. ,put up with) . They are often found in legal English; for example, account for, enter into, serve upon,put down.

 

Phrasal verbs can cause particular problems for non - native speakers of English where the verbs used have ordinary meanings when used without an adverb or preposition, but form an idiom when used with an adverb or preposition. In such cases the literal meaning of the words differs from the real meaning. For example,the phrasal verb to brush up on means to practise or study something in order to get back the skill or knowledge you had in the past but have not used for some time; for example, " I must brush up on my French before visiting Par­is" . Here are the main adverbs and prepositions which may be used with a verb to form a phrasal verb;

 

文本框: aback<br /> about<br /> above<br /> across<br /> after<br /> against<br /> as<br /> aside<br /> at<br /> away<br /> back<br /> before<br /> behind<br /> between<br /> bv<br /> ahead ahead of along among apart around off on onto out out of

 

over

 

past

 

round

 

thrniio+i

 

forth

        

 

towards

 

forward

        

 

under

 

from

        

 

up

 

in

        

 

upon

 

into

        

 

with

 

of

        

 

without

 

10. Negatives

 

 

 

 

Negatives are formed in English by using prefixes. The most common of these are un- ,in - ,il - ,im - ,ir - , non - and anti - . Here are some Common negative forms often used in le­gal English;

 

unlawful, unfamiliar, impractical, illegal, unfair, invalid, independence, injustice, impartial­ity , inequitable, unwritten, impracticable, unconstitutional, illicit

 

The prefix dis - is often used in a slightly different way to the prefixes listed above. It is not usually a direct negation but generally indicates dissent;for example,"we disagree". Note also that there are some-words in English which look like negatives but are in fact synonyms. For example,flammable and inflammable both mean easily set on fire.

 

Ending sentences with prepositions

 

The old rule that one should not end a sentence with a preposition derives from Latin grammar. As discussed in section 2 in the Introduction, lawyers were for a long period of time greatly attached to Latin forms as a result of Latin being used as the language of record in the early years of the history of English law. In fact, sentences very frequently end with prepositions in ordinary English due to the role played by idiomatic phrasal verbs - such as put up with - in the language. Winston Churchill wittily drew attention to this point by describing the rule a- bout ending sentences with prepositions as" the type of arrant pedantry up with which I shall not put" . As Churchill’s comment graphically illustrates, the problem with adhering strictly to this rule is that it can lead to very clumsy and artificial - sounding sentences. This often involves u- sing stilted constructions such as of which, on which and for which. For example, a sentence like" the document of which I spoke" is technically correct but would be more naturally ex­pressed as " the document I spoke about" .

 

Splitting infinitives

 

A split infinitive occurs when the basic verb form(e. g. ,to write', to go', to run') is divided by the insertion of another word between the parts of the verb. The most famous example of this is the phrase from Star Trek,to boldly go. This phrase should correctly have been "to go bold­ly" or "boldly to go" depending on whether one wished to emphasize going or boldness as the an infinitive should be avoided is when the split is so wide that the sentence starts to become unclear. For example," the main aim of this project is to more effectively,quickly and cheaply transact business" would be better rewritten" the main aim of this project is to transact business more effectively,quickly and cheaply".

 

Using the personal pronouns ‘I’ ,‘me’ and‘you’

 

The question of whether or not to use personal pronouns is linked to the question of wheth­er to use the active or passive voice. Although there are situations in which personal pronouns should be avoided in order to preserve a formal tone, in most cases using personal pronouns en­sures that your writing retains a connection with the reader.