Rhetorical flourishes in contracts

Boss Hogg knows the true status of a Duke

Best practice in modern contract drafting favours simple, functional language.  Rhetorical flourishes are frowned upon.  A recent discussion on the Koncision blog debated this point by reference to the phrase “Know all men by these presents”, which is sometimes seen in old-fashioned legal documents such as deeds poll.

Before condemning old-fashioned practices, it is sometimes instructive to understand them.  In this way, one can be sure that nothing has been missed when using “plain English”.

As an extreme example of old-fashioned rhetoric, consider the wording used in letters patent for the elevation of an individual to the UK peerage, as a duke.  IP Draughts understands that the traditional wording is as follows:

ELIZABETH THE SECOND by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms and Territories Queen Head of the Commonwealth Defender of the Faith To all Lords Spiritual and Temporal and all other Our Subjects whatsoever to whom these Presents shall come Greeting Know Ye that We of Our especial grace certain knowledge and mere motion do by these Presents advance create and prefer Our [Tobias Pettifog]  to the state degree style dignity title and honour of DUKE OF [OLD SARUM]. And for Us Our heirs and successors do appoint give and grant unto him the said name state degree style dignity title and honour of Duke of Old Sarum and by these Presents do dignify invest and ennoble him by girding him with a sword and putting a cap of honour and a coronet of gold on his head and by giving into his hand a rod of gold to have and to hold the said name state degree style dignity title and honour of Duke of Old Sarum unto him and the heirs male of his body lawfully begotten and to be begotten. Willing and by these Presents granting for Us Our heirs and successors that he and his heirs male aforesaid and every of them successively may have hold and possess a seat place and voice in the Parliaments and Public Assemblies and Councils of Us Our heirs and successors within Our United Kingdom amongst the Dukes And also that he and his heirs male aforesaid successively may enjoy and use all the rights privileges pre-eminences immunities and advantages to the degree of a Duke duly and of right belonging which Dukes of Our United Kingdom have heretofore used and enjoyed or as they do at present use and enjoy. In Witness whereof We have caused these Our Letters to be made Patent.

A plain English version would lose much of the theatricalityof the above language, and if you are going to be made a duke don’t you want all the bells and whistles you can get?  Not that this is likely – no new dukes have been created (other than members of the Royal family) for many generations.

Rod of Gold

Similarly, any new peer is likely to want the letters patent to be written in fancy script on a large piece of expensive parchment with some wax seals.  At a less elevated level, IP Draughts remembers vividly the day the annual practising certificates for solicitors were first issued by the new Solicitors Regulation Authority, rather than by the Law Society, and used a new design.  The design looked more like a first aid certificate than a professional qualification.

If we wanted to be killjoys, how might we convert the above into plain English?  Perhaps by saying something along the following lines:

Elizabeth II declares publicly that she appoints Tobias Pettifog as Duke of Old Sarum.  This appointment is binding on future monarchs of the United Kingdom [unless they take it away, a la Fred Goodwin].  As symbols of the appointment, the Queen gives Tobias Pettifog a sword, cap, coronet and rod of gold [but he will have to pay for them].  The title passes to legitimate male heirs in succession [wedlock only please].  A seat in the House of Lords comes with the appointment [this bit is now out of date, following House of Lords reform].  Various other important privileges come with the appointment, including priority seating at Royal funerals [think Easyjet Speedy Boarding, but a bit more upmarket].

I love Paris in the springtime...

IP Draughts makes no comment on whether we need dukes in the twenty-first century.  But if we do, it would be a shame to lose the rhetorical flourishes and dramatic wording.  This style of drafting would be completely inappropriate in commercial contracts, but for the appointment of a duke, marquis, earl, viscount or baron they are fine and dandy.

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