Sometimes, it is difficult to spot jargon in contracts. We are so used to seeing certain words and phrases that they become “part of the furniture” when drafting a contract. Even if we don’t actively use an expression, it appears in sample wording that we copy and paste. Unless we have lots of time for freehand drafting, the temptation is to let it remain undisturbed.
Examples are easy to find – eg without prejudice to the generality of the foregoing. It could be said that this phrase doesn’t use any legal terms, but it has a distinctly lawyerly flavour. If an expression of this kind is needed, IP Draughts prefers the slightly more straightforward without limiting the scope of clause X.
A similar example is notwithstanding the provisions of clause Y. Early in his career, IP Draughts sometimes worked with a client who was Turkish, an engineer and a professor. Although his English was very good, it became apparent from a discussion about a contract that this client thought notwithstanding meant, in effect, subject to. In other words, the exact opposite of its actual meaning. This incident made IP Draughts very aware of the risk of misunderstanding when using complex contractual language.
Some examples are very old-fashioned (English) language – eg using the verb determine instead of terminate. Some are sonorous phrases that seem designed to be read out in public, but have no place in a modern contract – eg to have and to hold which still appears in some IP assignments.
Some are Latin or contain medieval French – eg mutatis mutandis or last will and testament. Thankfully the (originally Norman French) word testament is disappearing from template wills. Some lawyers disagree, but IP Draughts thinks there is no excuse for using mutatis mutandis in an era where copying and pasting clauses from one part of a contract to another can be done so easily.
Some are the use of legal expressions out of context. Referring to gross negligence in a contract invites an uncertain interpretation if the contract ever comes before a court. See this example. The court will be asked to apply a concept from one branch of the law (tort) and apply it to another branch of the law (contract).
Another example that has been mentioned recently in a blog article (here) is moral turpitude. Apparently the expression appears in many US employment contracts. If the employee is convicted of a crime of moral turpitude, the employer can terminate the contract. This is another example of taking a phrase from one branch of the law (crime) and using it in another branch (employment). The authors of this article recommend that the phrase be not used in contracts.
IP Draughts has on several occasions ticked a box on a US immigration card certifying that he has not been convicted of any crime of moral turpitude. As far as he recalls, this phrase did not feature in his English criminal law lectures at university, so he is not sure what it means. His working assumption has been that it refers to a sexual offence that begins with a b. Much as he dislikes prissy word censorship, on reflection he would prefer not to attract the kind of internet attention that might come from using the word in a blog posting. As for the use of the term moral turpitude in a landing card, if a qualified lawyer from a common law jurisdiction doesn’t know what the phrase means, how likely is it that the 99.99% of passengers who are not common lawyers will do so?
By all means use legal terms in contracts where it is necessary or useful to do so. Often, though, legal expressions in contracts are a convenient shorthand rather than a strict necessity, and can and should be avoided in the interests of clarity and communicating with non-lawyers who may have to understand the contract.