mjl@ritcv.UUCP (Mike Lutz) (09/02/83)
True story: when my brother went to the closing for the house he
was buying, he was given a "plain English" version of the mortgage
he was getting from the bank. His lawyer turned to the bank's lawyer
and said " I can't read these things -- can you? "
Mike Lutz
{allegra,seismo}!rochester!ritcv!mjlsmb@achilles.UUCP (Steven Bellovin) (09/20/83)
From: mjl@ritcv.UUCP
Subject: Legalese
Message-ID: <498@ritcv.UUCP>
Date: Fri, 2-Sep-83 09:26:27 EDT
True story: when my brother went to the closing for the house he
was buying, he was given a "plain English" version of the mortgage
he was getting from the bank. His lawyer turned to the bank's lawyer
and said " I can't read these things -- can you? "
Mike Lutz
{allegra,seismo}!rochester!ritcv!mjl
Legal documents are written in a formal language derived from, but not
equivalent to, English. That is, certain phrases, by dint of usage,
common law, and case law, have acquired a certain very specific and
precise meaning. A non-lawyer is not likely to be acquainted with
these distinctions; by the same token, a lawyer will not see the
standard phrases that in a very strong sense convey the meaning of the
document. Nor is this nitpicking; the law can't tolerate ambiguity any
more than a computer language definition can. The problem with "plain
English" translations -- and they are exactly that, translations -- is
that they may not capture the exact sense of the original. And when
you have a situation where a clause can be interpreted in two different
ways, guess what results: a lawsuit!
Let me give an example of what I mean. Some years ago, I was presented
with a lease that, among other things, gave the landlord the right to
"take possession" of the premises if I should default on rent
payments. Now, I knew that North Carolina law does not permit such
behavior; the landlord is required to go into court and secure an
eviction order. Was I being asked to sign away my rights, or what? I
checked with a lawyer. She told me that originally, the phrase "take
possession" meant exactly that, but under current law, that phrase was
construed to mean "take whatever steps are prescribed by law to regain
possession of the property" -- i.e., go into court and attempt to
secure an eviction notice. Furthermore, without such a phrase, he
would not be able to secure such an order! The provision in the lease
was reserving to the landlord this self-evident right.
Now, in this case the actual meaning could have been expressed fairly
clearly in English. But suppose the lease had said "if you don't pay
up, the landlord can go into court and request an eviction order" --
and that during the term of this lease, the state had set up a housing
arbitration board, with jurisdiction over such cases. Could the
landlord still attempt to evict me, given that such court orders were
no longer possible? True, the law creating the board could have
decreed a translation of all such lease clauses, but what about ones
that were worded differently?
Don't get me wrong, I do approve of comprehensible contracts. One of
the best examples I've seen was a credit card application which gave
the finance charge rules in algorithmic form -- simpler to understand,
but utterly unambiguous (at least to me -- but of course algorithms are
my business). Before you flame at me, though, I suggest you try to
explain to a novice the difference between 'fprintf', 'fputs',
'fwrite', and 'write', and why all are necessary. (Pay special
attention to why 'fwrite' has both a size and an element count.)
--Steve Bellovin