6 Terminology and linguistic peculiarities
This chapter is devoted to various types of terminology and linguistic peculiarities which are encountered from time to time when reading legal text. The main purpose of covering them here is not to recommend their usage – except in the limited circumstances in which this might be appropriate – but to present them in order that they can be recognised and interpreted by the reader.
6.1 TERMS OF ART
Legal English, in common with many other professional languages, employs a great deal of terminology that has a technical meaning and is not generally familiar to the layperson. These are sometimes referred to by lawyers as ‘terms of art’.
Examples include waiver, restraint of trade, restrictive covenant and promissory estoppel. See the glossary of legal terminology for more information.
Take the multiple choice quiz online to practise terms of art.
6.2 FOREIGN TERMINOLOGY
A number of Latin and French words and phrases (such as inter alia, mutatis mutandis, ad hoc and force majeure) are in regular use in legal English. While these should not be overused, a number of them are regarded as indispensable by lawyers because they express a legal idea much more succinctly than could be achieved in English. For example, the phrase inter alia is sometimes rendered in English as ‘including but not limited to’.
See the glossary of foreign terms used in law at the back of the book for more information.
Now go online and match the Latin terms with the correct sentences.
6.3 DOUBLETS AND TRIPLETS
There is a curious historical tendency in legal English to string together two or three words to convey what is usually a single legal concept. Examples of this include null and void, fit and proper, perform and discharge, dispute, controversy or claim, and promise, agree and covenant. These are often called ‘doublets’ or ‘triplets’.
These should be treated with caution, since sometimes the words used mean, for practical purposes, exactly the same thing (null and void); and sometimes they do not quite do so (dispute, controversy or claim).
Modern practice is to avoid such constructions where possible and use single word equivalents instead. For example, the phrase give, devise and bequeath could be replaced by the single word give without serious loss of meaning.
However, the pace of change in legal usage is slow, and as a result it is still quite common to see certain typical doublets and triplets in certain legal documents. Some of the most common of these are listed below (with suggested equivalents in brackets).
|Able and willing||(= able)|
|Agree and covenant||(= agree)|
|All and sundry||(= all)|
|Authorise and direct||(= authorise OR direct)|
|Cancelled and set aside||(= cancelled)|
|Custom and usage||(= custom)|
|Deem and consider||(= deem)|
|Do and perform||(= perform)|
|Due and owing||(= owing)|
|Fit and proper||(= fit)|
|Full and complete||(= complete)|
|Goods and chattels||(= goods)|
|Keep and maintain||(= maintain)|
|Known and described as||(= known as)|
|Legal and valid||(= valid)|
|Null and void||(= void)|
|Object and purpose||(= object OR purpose)|
|Order and direct||(= order)|
|Over and above||(= exceeding)|
|Part and parcel||(= part)|
|Perform and discharge||(= perform OR discharge)|
|Repair and make good||(= repair)|
|Sole and exclusive||(= sole OR exclusive)|
|Terms and conditions||(= terms OR conditions)|
|Touch and concern||(= concern)|
|Uphold and support||(= uphold)|
|Cancel, annul and set aside||(= cancel)|
|Communicate, indicate or suggest||(= communicate)|
|Dispute, controversy or claim||(= dispute)|
|Give, devise and bequeath||(= give)|
|Hold, possess and enjoy||(= hold)|
|Pay, satisfy and discharge||(= pay)|
|Possession, custody and control||(= possession OR custody OR control)|
|Promise, agree and covenant||(= promise OR agree)|
|Repair, uphold and maintain||(= repair OR uphold OR maintain)|
|Way, shape or form||(= way)|
Words like hereof, thereof, and whereof (and further derivatives ending in –at, –in, –after, –before, –with, –by, –above, –on, –upon, etc) are not often used in ordinary English. They are still sometimes used in legal English, primarily as a way of avoiding the repetition of names of things in the document – very often, the document itself.
Although at first sight these words may appear very strange indeed, there is a certain logic to their construction. Essentially, they are prepositions and pronouns rolled into one.
For example, if we take the following sentence:
The parties to this contract agree as follows …
We could retain the preposition to and replace this contract with here, then combine here and to to give the following:
The parties hereto agree as follows …
Here is another example:
Any dispute arising from this contract shall be resolved in arbitration.
We could retain the preposition from and replace this contract with here to give the following:
Any dispute arising herefrom shall be resolved in arbitration.
In most cases the use of such words is strictly unnecessary or can be rendered unnecessary by the use of definitions. For example, if there is likely to be doubt about the matter the parties