Basic Legal Drafting by Anne Rutledge covers three areas of legal drafting: litigation documents, contracts and legislative documents.
I went straight for what interests me most at the moment, contracts, but I’ll definitely come back to take a closer look at the other two sections when I need to.
In truth, the other two sections could actually be of more use, particularly the first one on litigation documents, which, at first glance, seems to cover some useful concepts in an area that is typically harder to get your head around than contracts.
Legal systems do differ more when it comes to litigation procedures and documents, but there’s still a lot you can learn from looking at English models.
That’s not to say the section on contracts doesn’t have anything useful in it. At the very least, it seconds a lot of the advice you find elsewhere like:
- Prefer plain English over legalese and the active voice over the passive.
- Be consistent with shorthand and all types of names (important to remember and apply when translating from Spanish given this language’s penchant for the contrary!).
- Do not to call the recitals “recitals”.
Promissory versus descriptive statements
Rutledge also makes a distinction between promissory and descriptive language, which (as I talk about here) can serve as a rule of thumb for knowing which verb tense to use where.
Not into shall
Rutledge is not a fan of “shall”, preferring to avoid “the imperative tone” of it and other structures of obligation like it, e.g., “must”.
She prefers “will” because a contract is not “an expression of orders, rules or requirements” but rather “an exchange of promises”.
I don’t think I’ve come across exactly this argument against “shall” before. I actually find it more convincing than the main one I remember, i.e.: it’s so widely misused to mean many more things than just “has a duty to” that it should be left alone.
Ambiguous versus vague
Rutledge also points out a useful distinction to remember between ambiguity and vagueness.
Ambiguity is when something could mean two different things while vagueness is when there is uncertainty over the scope of “application in a particular situation”.
Ambiguity is the enemy and “almost never created purposefully in contracts”; vague language can be useful (e.g., “generally acceptable practice” and “reasonable rate of return”).
I think this distinction is relevant for translators. But not in the way it is for drafters.
Because, when translating, I suspect it’s easier than we think to unwittingly slip into treating ambiguity as if it were vagueness. Of course, if we did so knowingly, we’d be making a safe bet error. But that’s another story.
So, if we have a doubt over the meaning of a term or phrase, we need to recognise this and sort it out, whether it be our problem (we don’t understand something that others probably would) or the document’s (the original is poorly worded).
Vagueness, on the other hand, can and should be left vague.
But wait, there’s more…
Other things of interest to translators in this book include advice on ambiguous date prepositions and why you should write headings using noun phrases.
She also spells out the difference between a few oft-confused terms that come up in contracts, including, damage versus damages and release versus indemnification and termination versus cancellation.
Thanks for this, Rob.
Do you have a view on Ken Adams’s book on contract drafting? E.g. is it US-centric? I get the impression that it’s considered the “definitive” word on the subject.
It’s the most definitive thing I’ve read, and I’d certainly recommend it first to anyone who was only going to buy one book on English contract drafting.
I haven’t found it too US-centric, and it normally flags the important differences.
I did actually write this post on it, but I don’t think I did it justice there and wouldn’t write the same review today now that I’ve read much more of it. It really is very good.
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