Why Contracts aren't in Plain English

During our recent Foundations of Commercial Contracts workshop a delegate asked why contracts used such tortuous phrases as 'for the avoidance of doubt' and 'notwithstanding the foregoing'. These phrases, he suggested, added to the popular misconception that contracts are for the eyes of lawyers, and lawyers alone.

This is an interesting point, and one that we have considered in the past. You may be familiar with the 'Crystal Mark' for plain English, that can be awarded to documents considered by the awarding body to be written in clear, jargon-free language. It is possible (at some expense) to have a contract reviewed and granted a Crystal Mark, and we investigated this possibility for a client whose contracts were to be used in dealings with consumers.

The challenge facing us was evident from an examination of the Crystal Mark Conditions. These included the following:

"You must 'indemnify' us against any legal action connected with the document. (In other words, we have no legal liability in connection with the document.)"

While the words in the brackets sought to translate the legal provision into plain English, they are actually inaccurate in their translation. To explain exactly what an indemnity means would take rather more words than they have used. And therein lies the problem.

Although clarity in drafting is essential, particularly in order to make contracts accessible to technical and commercial people rather than just lawyers, there are occasions where a legal phrase or term is just the quickest and simplest way of communicating what we mean.

Let's take 'notwithstanding the foregoing' for example. Translated into plain English, this could be expressed as 'In the following circumstances you can ignore the previous clause, and replace it with this one.' Better? I don't know. I'd be very interested in your thoughts, as we are constantly working to make our contracts easier to read and more practical documents, without sacrificing their legal effectiveness.

In the mean time, we are working on a 'glossary of legalese' to offer some translations for these words and phrases. This will automatically be made available to all previous delegates on our Foundations of Commercial Contracts workshops, but if you haven't yet attended a workshop and you'd like to receive a copy e-mail me and I'll add you to the list.