Wednesday, January 9, 2019

Why Are Contracts Not Written in Plain English?

Why are contracts not written in plain English? The short answer: to reduce misunderstandings. The one word answer: ambiguity. Let me explain.

Ordinary, everyday language is rife with ambiguity, but often we don’t notice. Here's an example. Take the words “day” and “night.”  Those words seem simple enough, but when does a “day” end and when does a “night” begin (and vice versa)?

It’s very likely you can come up with an answer for yourself for what is the difference between night and day, but how sure are you that other people would have the exact same definitions? And are you sure that *everyone* would have the exact same definitions?

Let me offer some possibilities:

  • End of day is the end of the standard work day (as in, “Get me that report by the end of the day!”), so 5:00 p.m. (but is this really the end of the “standard” work day? What is the “standard” work day anyway? You see how ambiguity multiplies??)
  • End of day is the moment the sun fully sets, but even after sunset, it is still light out because of the twilight, so…
  • End of day is the moment when darkness completely falls.
  • End of day is when the clock strikes midnight and the next “day” begins.

There may be even more possibilities, but the point is that “plain” language, when scrutinized, often is not as plain as it seems.

Why don’t we notice the ambiguity of ordinary speech more often? Mostly, because ambiguities are routinely cleared up through conversation.

For example, I might say, “See you at the end of the day.” And you might say, “Great. Um…do you mean 5 o’clock?” And I might say, “Sorry, I meant 5:30.” And through the conversation we would understand each other.

Conversations, however, are not very useful for understanding legal documents for a simple reason: when legal documents come into play, there is usually a dispute, and if there is a dispute, both parties have an incentive to interpret words in the way that is most favorable to that person’s personal interests. So, just asking someone what they “meant” is unlikely to elicit a fully truthful answer.

What’s the solution? Be specific. Very specific. That means use technical terms with well understood meanings. That means use verbose descriptions. That means try to cover all conceivable contingencies.

Once you start writing defensively like this, you get unwieldy, hard-to-read documents, or what is sometimes called “legalese.”

It’s not pretty. It’s not easy to read. But when done correctly, these legal documents avoid disputes by having a clarity that our ordinary speech usually lacks.

By the way, if you’re interested in this topic and others like it, I discuss this at length in my book The Legal Mind: How the Law Thinks, which you can check out on Amazon by clicking here.

Note: This post first appeared in response to a question posed on Quora.