Category Archives: Legal Drafting

Saxon & Romance Words, part 2: Contract Drafting

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The last post introduced a way to think about plain words versus fancy ones: sometimes it’s the difference between words of Saxon origin and words of Romance origin. As a refresher, and to set the stage for this post’s focus, try this quiz. For each Saxon-named animal, give the French (Romance) name for the type of meat: chicken, cow, deer, sheep, pig. (Answers at the end of the column.)

Now let’s discuss contracts and other binding legal documents. They often contain Saxon-Romance pairs:

  • agree and covenant
  • cease and desist
  • due and payable
  • hold harmless and indemnify
  • sell and convey
  • will and testament

Why?

During the 1200s, French became the primary language of the law in England. In the 1400s and after, English began to replace French as the language of the upper classes. (History lesson omitted.) Hence the Saxon names for farm animals and the Romance names for their meat when served—as seen in our quiz.

English also began to replace French as the language of the law. Thus, as explained by David Crystal in The Stories of English, legal scribes often had to decide what words to use when “French and English each provide a copious supply of relevant items.”1 Often they didn’t choose—they used both.

As Crystal puts it, “Old English goods and Old French chattels resulted in Middle English legalese, goods and chattels.”2 Sometimes the pairs were synonyms, sometimes they were subtly different, and sometimes they were paired out of “stylistic habit, perhaps fostered by their undoubted rhythmical appeal in oral performance.”3

Many of these doublets persist today, as we saw in the pairs listed above. We also see triplets:

  • give, devise, and bequeath
  • ordered, adjudged, and decreed
  • right, title, and interest

Old legal language isn’t necessarily bad legal language, so how should legal drafters address these doublets, triplets, and longer strings? My advice here relies on my preference for plain, direct words and on the expertise of Kenneth Adams in his Manual of Style for Contract Drafting.4

First, do enough research to decide whether the doublet, triplet, or string contains words that differ in meaning or whether they’re true synonyms. (Sources to consult: Adams’s Manual of Style, Garner’s Dictionary of Legal Usage, and Black’s Law Dictionary.) If they’re not true synonyms, decide which meanings you intend and keep only the words you need.

If you have true synonyms, do your best to pick one word that conveys your intended meaning and delete the others. For example, in most contracts, sell and convey can be shortened to sell. If you intend separate actions—selling the item and then conveying the item to the buyer—then separate provisions requiring the seller to both sell the item and deliver it would be better.

What about the stock judicial phrase ordered, adjudged, and decreed? Certainly it’s harmless as is, but it would also certainly be harmless to shorten it to ordered.

And this monster is still sometimes used with security interests: grant, assign, convey, mortgage, pledge, hypothecate (what?), and transfer. Adams says it can be shortened to grant.5

To those who say that the extra words are harmless, so there’s no reason to excise redundancies, I can say only this: you’re mostly right. But litigation over the Romance-Saxon phrase indemnify and hold harmless gives pause. Some courts say they’re synonyms, while others say they’re not.6 Ultimately, a knowledge of Saxon-Romance pairs might help you streamline and improve your contracts.

(Quiz answers: chicken/poultry, cow/beef, deer/venison, sheep/mutton, pig/pork.)

Wayne Schiess’s past Austin Lawyer columns are collected in a book available on Amazon.com: Legal Writing Nerd: Be One.

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  1. David Crystal, The Stories of English 152 (2004).
  2. Id.
  3. Id.
  4. Kenneth A. Adams, A Manual of Style for Contract Drafting 6-7 (3d ed. 2013).
  5. Id. at 7.
  6. Id. at 292-93.

Is “herein” ambiguous?

Apparently so. Although the case law is sparse, herein has been construed to mean the individual section in which herein appears but also the entire document in which the section containing herein appears. Context dictates.

  • In a section of the Los Angeles city charter, the word herein referred only to the section in which the word herein appeared and not to the charter as a whole. City of Los Angeles v. Layton, 75 Cal. Rptr. 143, 145 (Ct. App. 1969).
  • In a will, the word herein referred to the whole will and not to the individual section in which the word herein appeared. Taylor v. Albree, 56 N.E.2d 904, 909 (Mass. 1944).
  • The word herein referred only to the statutory section in which it appeared, and not to the entire article in which that section appeared. Sharp v. Tulsa Cty. Election Bd., 890 P.2d 836, 841 (Okla. 1994), as supplemented on reh’g (Jan. 31, 1995).

So be careful, drafters.

If you’re able, maybe change herein to

  • in this section
  • in this agreement
  • in this statute
  • in this will

Even better, but trickier if you’re relying heavily on a form, maybe change herein to

  • in section 4

MS Word can create automatically update-able cross references if you want it to.