01 Introduction To Legal English PDF

UNIT 1
INTRODUCTION TO LEGAL ENGLISH
Thursday 9/3
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Introduction
In the daily practice o f the law, the most important subject is

the construction o f d o c u m e n t s . Yet it is the subject o n which
opinions are still much divided. There are the 'strict construc-
tionists' on the one hand: and the 'intention' seekers on the
other hand. The strict constructionists go b y the letter o f the
document. The 'intention' seekers go by the purpose or
intent of the makers o f it.
In the 1 9 t h century the strict constructionists d o m i n a t e d
the legal scene. They s t o o d by the 'golden rule' laid d o w n b y
the House o f Lords in 1 8 5 7 in Grey v Pearson1 . The Lord
Chancellor there said that the Courts should 'adhere as rigidly
as possible to the express w o r d s that are found and to give
those words their natural and ordinary meaning'. That rule
still has many adherents today.
In the 20th century the 'intention' seekers have b e e n
gaining ground: but very slowly. T h e y have been reinforced
of late by the m e t h o d o f interpretation used by the European
Court at Luxembourg. The legal system there is so broadly
conceived that the Judges have recourse to what they call the
'schematic' m e t h o d o f interpretation. They look to the
scheme or design and then fill in the gaps.
In this first part I trace the development of these rival
methods and present t h e m for y o u r consideration. I w o u l d
simply ask: Which m e t h o d is to b e preferred?
1. (1857) 6 HL Cas 61.

i C o m m a n d o f language
x The tools of trade

To succeed in t h e ' p r o f e s s i o n o f the law, y o u must seek fo
cultivate c o m m a n d o f language. Words are the lawyer's t o o l s
o f trade. When y o u are called upon to address a judge, it is
your words which count most. It is b y them that y o u will
hope to persuade the judge o f the Tightness o f y o u r cause.
When y o u have to interpret a section in a Statute or a para-
graph in a Regulation, y o u have to study the very words. Y o u
have to discover the.-meaning b y analysing the words o n e
by one to the very last syllable. When y o u have t o draw up
a will or a contract, y o u have to c h o o s e y o u r words well. Y o u
have to l o o k into the future envisage all the contingencies
that may c o m e to pass and then use words to provide for
them. On the words y o u use, your client's future m a y
depend.
The reason w h y words are so important is because words
are the vehicle o f thought. When y o u are working o u t a
problem o n y o u r o w n at y o u r desk or walking h o m e y o u
think in words, not in s y m b o l s or numbers. When y o u are
advising y o u r client in writing or b y word o f m o u t h y o u
must use words. There is no other means available. T o d o it
convincingly, do it simply and clearly. If others find it
difficult t o understand y o u , it will o f t e n be because y o u have
not cleared your o w n mind upon it. Obscurity in thought
inexorably leads to obscurity in language.
S o m e t i m e s y o u may fail w i t h o u t your fault to m a k e
yourself clear. It may be because o f the infirmity o f the
words themselves. T h e y m a y be inadequate to express the
5
Part One The construction of documents
m e a n i n g w h i c h y o u wish to c o n v e y . T h e y m a y lack t h e
necessary precision. 'Day' and 'Night' are clear e n o u g h at
m o s t times. But w h e n d o e s day begin and night end? S o m e
m a y say at sunrise. Others w o u l d say at d a w n . T h e n w h e n
d o e s 'dawn' begin? N o o n e can tell e x a c t l y . Or a w o r d may
m e a n o n e thing to o n e person and a n o t h e r thing to another.
T a k e 'punctual p a y m e n t ' or 'prompt p a y m e n t 1 . T o o n e it
m a y mean i m m e d i a t e p a y m e n t . T o a n o t h e r it may permit o f
a little latitude and it m a y s u f f i c e if p a y m e n t is m a d e w i t h i n
a day or t w o . T h e d i f f e r e n c e b e t w e e n the t w o will remain
unless it is settled b y t h e B o u s e o f Lords' . Y e t again a w o r d
m a y m e a n o n e thing in o n e c o n t e x t and a n o t h e r thing in
a n o t h e r c o n t e x t . T h u s ' m o n e y ' may be l i m i t e d t o the m o n e y
in y o u r purse and cash at bank or it m a y include m o n e y
o w i n g t o y o u for d i v i d e n d s or rents 2 . Y e t again a w o r d may
m e a n o n e thing in o n e s i t u a t i o n and a n o t h e r in another. T a k e
t h e w o r d s 'insulting behaviour'. B l o w i n g a w h i s t l e on the
Centre Court at W i m b l e d o n m a y be 'insulting behaviour'; but
b l o w i n g it at t h e C u p Final at W e m b l e y w o u l d not. It
d e p e n d s o n t h e m e a n i n g w h i c h y o u y o u r s e l f c h o o s e t o give t o
'insulting 1 . T h e d i f f e r e n c e is n o t t o b e s e t t l e d by authority,
b u t b y individual c h o i c e 3 . C o n s t a n t l y y o u will find ordinary
p e o p l e giving d i f f e r e n t meanings t o t h e same w o r d . This gives
full s c o p e t o t h e lawyer.
2 Acquiring skill
H o w then can y o u acquire this c o m m a n d o f language s o
m u c h to be desired? Forgive me here i f 1 give o f my o w n
e x p e r i e n c e . When I w a s y o u n g , I did n o t think m u c h in
w o r d s . At O x f o r d 1 s t u d i e d Mathematics. N o n e e d for words
there. T h e t o o l s I u s e d then w e r e n u m b e r s , letters and
s y m b o l s . T h e y were lifeless things w i t h o u t m e a n i n g or s o u n d
t h e necessary t o o l s o f the scientist b u t n o t o f the lawyer.
B u t w h e n I was called t o the Bar, I had t o b e c o m e proficient
with words. I did it b y drawing on m y reserves o f English
1. Machine u Catty [ 1 9 2 1 1 1 A C 3 7 6 .
2. Perrinv Morgan [ 1 9 4 3 ] AC 3 9 9 .
3. Brutus v Cozens [ 1 9 7 3 ] A C 8 5 4 .
6
Command of language
literature. These I had acquired at the Elizabethan Grammar
School to w h i c h I w e n t daily. I had read much o f Shakes-
peare and many o f our poets and novelists whilst still at
school. All m y prizes from the age of 11 were for English. 1
have them still, b o u n d in handsome leather, with the school
crest and the date A D 1 5 6 9 . The titles in succession are th
Great Authors, Macaulay, Carlyle, and Milton. Reading these
and others provided the essentials: a w i d e vocabulary of
words, and an understanding o f the meaning attached t o
them by the masters o f the language. C o m e t o think of it,
that is h o w the makers o f the great O x f o r d Dictionary set
about their task to discover meanings. T h e y compiled it
'from over five million q u o t a t i o n s derived from English
works o f literature and records o f all kinds'. T h e n glance a t
the Dictionary itself t o see t h e result. It shows that the
meaning o f a word m a y change from d e c a d e to decade, from
place to place, even from one person t o another. It m a y
d e p e n d on the subject-matter under discussion or the contejct
in which it is used. S o y o u have a challenging task ahead if
y o u are to acquire c o m m a n d o f language: and to say what
meaning any particular w o r d has in any particular case.
N e x t , I had to practise continually. A s a pianist practises
the piano, so the lawyer should practise the use o f words,
both in writing and b y word o f m o u t h . Again, forgive a
personal reminiscence. In chambers, if asked to advise, I took
infinite pains in the writing o f an o p i n i o n . I crossed out
sentence after s e n t e n c e . I w r o t e t h e m again and again. Seek
to make your opinions clear at all costs. Make them positive
and definite. N o t neutral or vacillating. My pupil master told
me early on o f the client's complaint: 'I w a n t y o u r o p i n i o n
and not your doubts', and o f Sir G e o r g e Jessel's character-
istic saying: '1 may be wrong and s o m e t i m e s am, but I am
never in doubt'.
3 Addressing the Court

Apart from writing, there is addressing the Court. Speaking
needs even more practice: and even m o r e experience. I was
7
Part One The construction of documents
no g o o d at first. I was t o o s h y ; also t o o nervous. Others are
different. Many friends o f m i n e w h o have since b e c o m e
eminent started as President o f the U n i o n at O x f o r d or
Cambridge. A t O x f o r d I j o i n e d the U n i o n but never s p o k e
there. I o n l y learnt by actual e x p e r i e n c e by t h e small
briefs w h i c h c o m e the beginner's w a y by addressing a jury,
for w h o m y o u must make things simple and clear like a
d o c k brief at Quarter Sessions at Winchester with only half-
an-hour b e f o r e the case c o m e s on or a two-guinea brief in
the Marylebone County Court b e f o r e a testy judge. He c o u l d
be very rude if y o u made t h e slightest mistake. R e m e m b e r
also that, whatever the tribunal, y o u must give a g o o d
impression. Your appearance m e a n s a lot. Dress neatly, not
slovenly. Be well-groomed. Y o u r voice must be pleasing, n o t
harsh or discordant. Pitch it so that all can hear w i t h o u t
strain. Pronounce your c o n s o n a n t s . D o not slur your words.
Speak not t o o fast nor y e t t o o slow. All these things are
c o m m o n p l a c e but they are so o f t e n f o r g o t t e n that I warn
y o u against the mistakes I see m a d e daily. N o hands in
pockets. It s h o w s slovenliness. N o fidgetting with pencil or
with gown. It s h o w s nervousness. N o whispering with neigh-
bours. It s h o w s lack o f respect. N o 'ers' or 'urns'. It s h o w s that
y o u are slow-thinking, not k n o w i n g w h a t to say n e x t . A v o i d
mannerisms like the plague. It distracts attention. D o n ' t be
dull. Don't repeat yourself t o o o f t e n . D o n ' t b e l o n g - w i n d e d .
All these lose y o u y o u r hearers: and o n c e y o u have lost t h e m ,
y o u are d o n e for. Y o u can never get them back n o t so as to
get them t o listen attentively.
O n e thing y o u will not be able t o avoid the nervousness

before the case starts. Every a d v o c a t e k n o w s it. In a w a y it
helps, so l o n g as it is n o t t o o m u c h . That is where I used
s o m e t i m e s to fail. My clerk as a g o o d clerk s h o u l d t o l d
m e o f it. I was a n x i o u s to w i n and so tense -- that my v o i c e
b e c a m e t o o high-pitched. I never quite got over it, even as a
King's Counsel. N o longer n o w that I a m a Judge. T h e
tension is g o n e . T h e a n x i e t y t o d o right remains.
8
2 The interpretation of statutes
I Finding the intention

In almost every case on which y o u have to advise y o u will
have t o interpret a statute. There are stacks and stacks of
them. Far worse for y o u than for me. When I was called in
1 9 2 3 there was one volume o f 5 0 0 pages. N o w in 1 9 7 8 there
are three volumes o f more than 3 , 0 0 0 pages. N o t a single
page but it can give rise to argument. N o t a single page but
t h e client will turn to y o u and say: 'What d o e s it mean?' The
trouble lies with our m e t h o d o f drafting. The principal object
of the draftsman is to achieve certainty a laudable object in
itself. But in pursuit o f it, he loses sight o f the equally
important object clarity. T h e draftsman or d r a f t s w o m a n
has conceived certainty: but has brought forth obscurity;
sometimes even absurdity.
B o o k s and b o o k s have been written u p o n the interpre-
tation o f statutes. All for the old hand. N o t o n e for the
beginner. Maxims are given to help. They are called 'Rules o f
Construction'. Have recourse to them w h e n they suit your
case, but d o it with discretion. Y o u will s o m e t i m e s discover
that if y o u find a maxim or rule o n your side, y o u r o p p o n e n t
will find o n e on his side to counteract it.
B e y o n d doubt the task o f the lawyer and o f the j u d g e
is to find o u t the intention o f Parliament. In d o i n g this, y o u
must, o f course, start with the words used in the statute: but
not end with them as s o m e people seem to think. You
must discover the meaning o f the words. I have k n o w n
statutes where there is n o discernible meaning. T h e n we can
say with the King in Alice in Wonderland: 'if there's no
9
WORDS OF AUTHORITY 939
WORDINESS. S e e CUTTING OUT THE CHAFF, REDUN- (per Lord Diplock)J "]T]he bank may and should
DANCY & VERBOSITY. be held liable for gratuitously, officiously, and
affirmativelya surfeit of adverbs never hurt
WORD-PATRONAGE is "the tendency to take out anyonetelling the government how to place its
one's words and look at them, to apologize for grasp upon its customer's funds." Schuster v.
expressions that either need no apology or should Banco de Iberoamrica, SA., 475 So. 2d 253, 255
be quietly refrained from" CMEVl at 733). E.g., (Fla. Dist. Ct. App. 1985) (Schwartz, J., dis-
"Hopefullyto use an ugly wordthe dilemma senting) J "Even a murderer can look forward to
will be solved by the proposed legislation." In a parole after 17 years, in a manner best charac-
his preface to MEU2, Cowers indulged mildly in terized by that much-misused word, 'hopefully.'"
word-patronage when he wrote: "This was indeed In re Clements, 440 N.W.2d 133, 137 (Minn. Ct.
an epoch-making book in the strict sense rf that App. 1989) (Irvine, J., dissenting). See if you
overworked phrase" (p. iii). The tendency is not will.
at all uncommon:
w o r d processing, n. & adj., should be spelled as
"He came to the conclusion then that the best
two words thus.
way of exploiting this invention was to use the
mills himself and to what has been described as
WORDS OF ART. S e e TERMS OF ART.
'trade grind'rather a lengthy split infinitive."
Young v. Wilson, (1955) 72 R.P.C. 351, 353
WORDS OF AUTHORITY Few reforms would im-
(Ch.D.) (per Upjohn, J.). See SPLIT INFINITIVES.
prove legal DRAFTING more than if drafters were
"You have got to so frame yours so that it 'sells
to begin paying closer attention to the verbs by
the Court,' to use the term of the marketplace,
which they set forth duties, rights, prohibitions,
which I abhor . . . Karl N. Llewellyn, A Lec-
and entitlements. In the current state of common-
ture on Appellate Advocacy, 29 U. Chi. L. Rev.
law drafting, these verbs are a horrific muddle
627, 630 (1962). In that sentence, the which-
and, what is even more surprising, few drafters
clause is ambiguous: it may refer either to mar-
even recognize this fact. The primary problem is
ketplace or (as Llewellyn intended) term of the
shall, to which we must immediately turn.
marketplace. S e e REMOTE RELATIVES.
A Shall This word runs afoul of several basic
"The language of this description is perhaps not
principles of good drafting. The first is that a word
very elegant, for it homologates (if I may use
used repeatedly in a given context is presumed to
that horrible word) the noun 'dealer' with the
bear the same meaning throughout. (Shall com-
participles which appear in the parenthesis."
monly shifts its meaning even in midsentence.)
Walter Chadburn and Son Ltd. u. Leeds Corp.,
The second principle is strongly allied with the
(1969) 20 P.&C.R. 241, 241, 246 (CA.).
first: when a word takes on too many senses
"The House of Lords does now enjoyif that be and cannot be confined to one sense in a given
the word-the freedom not to follow its own document, it becomes useless to the drafter.
previous decisions . . . ." Leslie Scarman, En- (Shall has as many as eight senses in drafted
glish LawThe New Dimension 5 (1974). documents.) The third principle has been recog-
"The last sentence is rather clumsy, but what I nized in the literature on legal drafting since the
mean is this." Gianville Williams, Learning the mid-19th century: good drafting generally ought
Law IS (11th ed. 1982). to be in the present tense, not the future. (Shall
- "Although it is a clich to say so, it is in every is commonly used as a future-tense modal verb.)
way encyclopedic: every form of every descrip- In fact, the selfsame quality in shall-the fact
tion in connection with any Queen's Bench ac- that it is a CHAMELEON-HUED "WORDcauses it to
tion is here." Charles Joseph, Book Review, 83 ~!
Law Soc. Gazette 3667 (1986). viujauc CC.U ui .uuoc piu^ipica.
A variation of this mannerism occurs when one How can shall be so slippery, one may ask,
defends one's choice of words in anticipation of when every lawyer knows that it denotes a man-
the reader's distaste: "The Maryland statute ap- datory action? Well, perhaps every lawyer has
pears to be unique in the proper use of that much heard that it's mandatory, but very few consis-
misused word." Williams u. Patuxent Inst, 347 tently use it in that way. And, as a result, courts
A2d 179, 187 (Md. 1975)./ "The 'philosophy" of in virtually every English-speaking jurisdiction
the Act (if I may be forgiven this neologistic use) have heldby necessitythat shall means may
was to allow a legally aided party to civil proceed- in some contexts, and vice-vers. These holdings
ings only one successful bite at the legal cherry have been necessary primarily to give effect to
. . . ." Megarity v. Law Soc'y, {1982] AC. 81,103 slipshod drafting.
What, then, are the meanings of shall? The
94FI W O R D S O F AUTHORITY
shadings are sometimes subtle, but the following One solution to the problem that shall poses is
examplesall but the last two from a single set of to restrict it to one sense. This solutioncalled
court rulesillustrate the more common shades: the "American rule" because it is an approach
followed by some careful American draftersis to
"The court . . . shall enter an order for the use shall only to mean "has a duty to." Under the
relief prayed for . . . ." The word imposes a American rule, only the first of the seven bulleted
duty on the subject of the sentence. items above would be correct. The drafter might
"Service shall be made on the parties . . . ." well say that a party shall send notice, but not
The word imposes a duly on an unnamed per- that notice shall be sent by the party. (If this
son, but not on the subject of the sentence "has-a-duty-to" sense is the drafter's convention,
("service," an abstract thing). must serves when the subject of the sentence is
"The debtor shall be brought forthwith before an inanimate object.) This solution leads to much
the court that issued the order." The word greater consistency than is generally found in
seems at first to impose a duty on the debtor American drafting.
but actually imposes it on some unnamed actor.
Another solution is the "ABC rule," so called
"Such time shall not be further extended except
because, in the late 1980s, it was most strongly
for cause shown." The word shall gives permis-
advocated by certain Australian, British, and Ca-
sion (as opposed to a duty), and shall hot denies
nadian drafters. The ABC rule holds that legal
permission (i.e., it means "may not"). This prob-
drafters cannot be trusted to use the word shall
lemshall being equivalent to mayfrequently
under any circumstances. Under this view, law-
appears also in the statutory phrase No person
yers are not educable on the subject of shall, so
shall. Logically, the correct construction is No
the only solution is complete abstinence. As a
person may, because the provision negates per-
result, the drafter must always choose a more
mission, not a duty. See (E).
appropriate word: must, may, will, is entitled to,
"Objections to the proposed modification shall or some other expression.
be filed and served on the debtor." The word
This view has much to be said for it. American
purports to impose a duty on parties to object
lawyers and judges who try to restrict shall to
to proposed modifications, though the decision
the sense "has a duty to" find it difficult to apply
to object is discretionary. This amounts to a
the convention consistently. Indeed, few lawyers
conditional duty: a party that wants to object
have the semantic acuity to identify correct and
must file and serve the objections.
incorrect shalls even after a few hours of study.
"The sender shall have fully complied with the That being so, there can hardly be much hope of
requirement to send notice when the sender the profession's using shall consistently.
obtains electronic confirmation." The word acts
Small wonder, then, that the ABC rule has fast
as a future-tense modal verb (the foil verb
been gaining ground in the U.S. For example, the
phrase being in the future perfect). Many read-
federal government's Style Subcommitteepart
ers of this sentence, however, encounter a MIS-
of the Standing Committee on Rules of Practice
CUE in reading the sentence, which confusingly and Procedurea subcommittee that since 1991
suggests that the sender has a duty. has worked on all amendments to the various
"The secretary shall be reimbursed for all ex- sets of federal court rules, adopted this approach,
penses." The word expresses an entitlement, disallowing shall, in late 1992. (This came after
not a duty. a year of using shall only to impose a duty on the
"Any person bringing a malpractice claim shall, subject of the verb.) As a result, the rules have
within 15 days after the date of filing the action, become sharper because the drafters are invari-
file a request for mediation." Courts interpre- ably forced into thinking more clearly and spe-
ting such a rule or statute often hold that shall cifically about meaning.
is directory, not mandatorythat it equates
with the softer word should. There is, of course, a third approach: to allow
shall its traditional promiscuity while pretending,
So much for the "Golden Rule" of legal drafting, as we have for centuries, that preserving its chas-
which Reed Dickerson put this way: "[T]he compe- tity is either hopeless or unimportant. Of course,
tent draftsman makes sure that each recurring that approach breeds litigation, as attested in 76
word or term has been used consistently. He care- pages of small-type cases reported in Words and
fully avoids using the same word or term in more Phrases, all interpreting the word shall. As long
than one sense . . . . In brief, he always ex- as the mass of the profession remains unsensi-
presses the same idea in the same way and always tized to the problems that shall causes, this ap-
expresses different ideas differently." The Funda- pears to be the most likely course of inaction.
mentals of Legal Drafting 2.3.1, at 15-16 (2d ed. For more on the use of must as opposed to shall
1986). under the ABC rule, see (c). For further dis-
introduction to Lega! English
Ric-ardo ChiesaUniveridad Austral -
The Distinctive Features of Legal English

as to Lexis, Structure, Syntax and Style
1. USE OF DEICTIC WORDS

Adverb Constructions with "HERE" and "THERE"
in Legal English, deictic words are typically used for textual, intertextual and
situational reference and to express position within the text.
E.g. .
This agreement
These presents
The directors then in office (i.e., at some time already mentioned
[anaphoric reference] or to be identified below in the text [cataphoric
reference]).
All prices specified below
The aforementioned officers of the Corporation
The foregoing restrictions shall not apply...
All petitions shall be handled as follows. ...
<- Here and there adverb constructions
Here is used to refer to the instrument itself or a portion of it:

This agreement and any exhibits attached hereto
Any objection to the provisions of this Section 12 or to any
amendments hereof
There can be used to refer to:
a) An extrinsic instrument or a portion of it. E.g. Should the

Uniform Commercial Code be deemed inapplicable to this
contract, any provisions therein contained...
b) An item mentioned in the text, especially where such item

is not the text itself or a portion of it.
s Any property located on the premises or which has
been removed therefrom...
S This warranty shall be in full force and effect until

May 31, 2012, and any claims filed thereafter shall
be rejected.
N.B. "Hereby" and "thereby" express 'manner', 'means', 'instrument' or 'result'

(= thus), and should not be used as substitutes for an animate or inanimate
agent.
s The aforementioned purchase and sale and the property

conveyed thereby...
f Plus, Inc. acquired a 60% interest in Minus, Inc., thereby

becoming the owner of a substantial portion of the business.
s But: The Board of Directors meets once a month, and all

decisions adopted by it (not "adopted thereby")...
The preposition attached to "here" or "there" is governed by:
a. a preceding verb: E.g. Performance of this Master

Distribution Agreement and any disputes arising herefrom...
b. a preceding adjective: E.g. These bylaws are governed by

the General Law of Corporations of Delaware and shall not
be held to be incompatible therewith unless...
c. a preceding noun: E.g. The abovementioned financial

statements, and all the attachments and exhibits which are
an integral part thereof...
Ric-ardo Chiesa Univeridad Austral -
Usual combinations
hereby thereby
herein therein
hereof thereof
hereon thereon
hereto thereto
herefrom therefrom
hereunder thereunder
herewith therewith
hereinbelow thereinbelow
hereinabove thereinabove
hereinafter thereinafter
hereafter thereafter
therefor
wherefrom thereat
whereupon thereupon
v Training programs shall be organized by the company, and all expenses

associated therewith shall be paid...
v John Doe (hereinafter referred to as "Assignor")...
v Ms. Davis finished her presentation and thanked those present,
whereupon she left the meeting.
2. DOUBLETS AND TRIPLETS OF LEGAL IDIOM
Set phrases formed for amplification by synonymy or near-synonymy; word

order is usually fixed, though reversibility is acceptable in some cases.
- Null and void

- Covenant and agree
- Of sound and disposing mind and memory
- This agreement is made and entered into...
- Any and all products, whatever the kind or nature thereof
- Supersede and displace /Displace and supersede

- Order, adjudge and decree
- Ready, willing, and able
3. CIRCUMLOCUTIONS and CLICHS
Circuitous expressions and stereotyped phrases traditionally used for impact

or effect, which can be reduced to simpler forms to avoid verbosity or whose
intended impact has been lost through overuse.
- during such time as (= while)

- on a yearly basis (= annually, every year)
- set one's hand (= sign)
- in all likelihood (= most probably)
- under separate cover (- separately)
- Distributor is desirous of undertaking the distribution... (= wishes to
undertake)
4. ARCHAISMS, LATINISMS and FOREIGN (TYPICALLY

NORMAN/FRENCH) WORDS
- John Smith, personally known unto me,...

- This agreement witnesseth...
- Jane Doe, party of the first part,...
- in any manner whatsoever
- Inter alia (= among other things)

- Et al. (= and another / and others)
- A bona fide purchaser (= one acting in good faith)
- The cestui qui trust (= the beneficiary of a trust)
- An event of force majeure

- To be released on parole
- Shareholders' consent in lieu of meeting
5. SET PHRASES I FOSSILIZED FORMS
Various constructions that have become hallmarks not only of Legal English
but also of the language of bureaucracy or officialese.
- Except as otherwise provided herein...

- X or Y, as the case may be,...
- Subject to the provisions of...
- Know all men by these presents: ...
- Including without limitation.../ Including but not limited to...

- Without derogating from the generality of the foregoing, ...
- Notwithstanding the foregoing,...
- as may from time to time be directed...
6. EMPHASIS, REDUNDANCY and TAUTOLOGY
Use of mostly otiose or superfluous words or phrases, typically justified on

the grounds of style, effect or "color", but which could be omitted without
incurring much or any loss of meaning.
Emphatic forms:
- I do hereby certify that...

- Lessor expressly agrees...
- To any other person whomsoever...
Redundant and tautologous forms:
- Most idiomatic legal pairs and triplets (see no. 2 above)

- The agent shall be empowered to do any act or thing. ..
- Purchaser shall duly pay...
- The property shall revert back to Lessor...
- Mutual cooperation between the parties
- Where unanimous consent has been reached by all stockholders...
- Any sums payable at any given time during the term of this
agreement...
7, MISLEADING ENUMERATIONS and OPPOSITIONS
Strings in which not all the elements mentioned are true co-hyponyms of one
another that is one of them ranks "higher" or "lower" than one or more of the
others, according to different degrees of specificity.
- Termination or expiration of a contract ("Expiration" of the contractual

term agreed upon is in fact one of the possible reasons for termination
of a contract where the broad sense of "termination" is used, i.e.,
"coming to an end").
- Any person or individual (In the language of the law, "person" is the
superordinate term, comprising "legal persons/entities" (e.g. a
company) and "individuals" (i.e., physical persons), so that the
conjunction "or" as used in the phrase does not really express either
opposition or addition).
introduction to Legai English 6
' Ricardo Chiesa - Universidad Austral -
Sell or dispose of property ("Selling" is one of several ways in which

property may be "disposed o f , so that the item "sell" is semantically
included in the item "dispose o f . More accurate forms could be: "Sell
or otherwise dispose of property", or "Dispose of property, by sale or
otherwise").
8. PROVISOS (RESERVATIONS, EXCEPTIONS, LIMITATIONS)
> Devices used to signify an exception to a rule or general principle

previously set forth, or a reservation or restriction to this rule or
principle.
> Typically introduced by the phrases "provided that", "provided always

that", "provided however", which may mislead the reader into thinking
that the clause expresses a condition rather than a reservation,
exception or concession.
> The sentence can generally be easily rephrased using "byt" or

"however".
E.g.
"Whenever the vote of stockholders at a meeting is required in connection

with any corporate action, the meeting and vote of stockholders may be
dispensed with if at least two-thirds of stockholders consent in writing to
such corporate action being taken; provided that prompt notice thereof be
given to all stockholders who have not so consented to the said action being
taken."
9. FREQUENT USE OF INVERSION OF WORD ORDER
i) Emphatic use of adverbs or adverb phrases. E.g. On no

account may the agent enter into contracts on realty without the
principal's consent.
ii) Omission of "if in conditional clauses. E.g. Should the

employer fail to give the employee proper notice of dismissal, the
employee may claim payment of compensation in lieu of notice.
10. FREQUENT USE OF THE INFINITIVE IN SUBJUNCTIVE MOOD

CONSTRUCTIONS
IritroiL'Ciofi ET- Legs', English
Ricardo Chiesa - "nivfersidad A usi ra i -
In the event that Distributor be prevented from marketing the

products within the territory. Distributor must give immediate
notice to the Company.
it is indispensable that the prospective purchaser duly agree to
all of the terms and conditions before the contract is signed.
11. FREQUENT USE OF PASSIVE VOICE, ESPECIALLY WHERE

EMPHASIS IS LAID ON THE AGENT
E.g.
I further declare that, unless this power of attorney be expressly
revoked by me, ..
Once a resolution has been passed by the entire Board of
Directors as described above,...
12. FREQUENT USE OF REDUCED AND VERBLESS CLAUSES
E.g.
Unless otherwise agreed,...
As provided in Article 3 below,...
Where necessary, an audit shall be conducted...
To the extent permissible by applicable law,...
Whenever required or appropriate,...
13. RECURRENT USE OF CERTAIN PREPOSITIONS, the use of

which (with the same meaning) is either infrequent or classed
as "formal" in general English
E.g.
- Upon the grantor's death... (= at the time of his death or immediately

afterwards). .
- All of the products under this agreement (= those covered by or
contemplated in it).
- Under the Securities Act of 1933,... (= in accordance with the provisions
of the Act, as provided by the Act, pursuant to the Act).
- Notwithstanding any provision to the contrary,... (= in spite of the
existence of any provision...)
introduction to Legai English 8
' Ricardo Chiesa - Universidad Austral -
14. FREQUENT USE OF CERTAIN MODAL VERBS
i) May. - In the affirmative: 1) granting or acknowledgment of a right,

power or privilege; 2) possibility.
- In the negative: 1) denial of a right, power or privilege; 2)
prohibition.
E.g.
Any shareholder may grant a proxy to any other shareholder having
voting powers.
Lessee may not do any repairs that may cause damage to the leased
premises.
ii) Shall: - In the affirmative: obligation, mandatory action.

- In the negative: prohibition.
E.g.
All payments shall be made in U.S. dollars.
The Licensee shall not disclose any confidential information about the
products.
Shall is also commonly used:
as a substitute for the present tense, to introduce a mere

statement of fact:
E.g. The name of the Company shall be XX, Inc.
to express the present or contemporary (i.e., not future or

deferred) granting or acknowledgment of a right (in which case,
may is a better choice):
E.g. The attorney-in-fact shall also be entitled to / have the right to
collect all sums due to the principal.
In both cases above, the use of shall is considered incorrect from a

prescriptive point of view.
i n t r o d u c t i o n to Legai English 9
' R i c a r d o Chiesa - Universidad Austral -
in ciauses of time, condition, and contingency, for present or

future time reference (where Enplish grammar prescribes that
the present tense be used):
E.g. As soon as any and aii royalties due shall have been paid as
agreed,...
A quorum shall not be formed uniess there shall be present at
least four directors,
iii) Must -1) obligation; 2) condition o r requirement.
E.g.
All notices between the parties must be sent by certified mail, ...
All candidates must be of legal age and residents of the piace
where the committee is located.
iv) Need not - Absence of necessity or obligation.
E.g.
The Board need not consult with the Executive Committee on
director compensation matters.
15. Frequent use of the ZERO ARTICLE and the pronoun "it" to
identify the parties to an act
E.g. If Seller shall not agree to a reduction in the price, Purchaser may give
notice to it whereby it decides to terminate the agreement.
16. Frequent use of "SUCH" as a determiner, "SAME" as a

pronoun, and "SAID" and "MENTIONED" as participial
adjectives
E.g. - Such powers may be exercised... (rather than "These/Those powers")

-... and they are hereby authorized to sign all such documents as may
be necessary or appropriate (rather than "all the /those documents that
may be necessary...")
introduction to Legal English 10
Ricardo Chiesa - Unversiad Austral -
- After Grantor has executed the deed, he shall deliver same to the
bank.
- The said Jane Peters is hereby empowered to sign the above-

mentioned license agreement on behalf of...
17. CAPITALIZATION
V Capital initials are often used to identify animate or inanimate entities that
are regarded as unique or especially important, or in order to distinguish
such entities from others of the same class that are alien to the subject
matter of the text or to highlight certain terms that have been previously
defined in the instrument.
All of the provisions contained in this Agreement, including those relating

to Payment Terms, Waiver of Rights and Liability of the Parties shall be
deemed to supersede those contained in any other agreement between
the Parties hereto.
s Certain expressions are often used conventionally in BLOCK CAPITALS

in contractual agreements, certifications, powers of attorney, judicial
decisions and other documents:
IN WITNESS WHEREOF,...
BE IT REMEMBERED THAT...
(BE IT) RESOLVED THAT...
SO ORDERED.
WHEREAS,...
PROVIDED ALWAYS THAT...
USEFUL DEVICES IN LEGAL DISCOURSE
CONDITION CONCESSION
> if > although, though, even though

> only if; if and only if > in spite of (the fact that)
> as long as > despite (the fact that)
> so long as > however, ...; however (+
> provided that adj./adv.)
> on condition that > whatever
> insofar as (aiso: in so far as) > no matter (what, where, how,
> unless etc.)
> but for > even if
CONTINGENCY RULES AND PRINCIPLES
> in case (of; that...) > when

> in the event (of; that...) > whenever
> Inversion constructions > where
(Should...)
REASON OR CAUSE EFFECT, RESULT
> because > so

> since > then .
> as > consequently
> for > therefore
> seeing that > hence
> in view of > as a result, ...
> as a result of > for this/that reason, ...
> as a consequence of > accordingly, ...
> inasmuch as
> by virtue of > This / That is why ...
> due to
> owing to > Otherwise, ...
> because of > or else
> the reason why ...

> result from > result in
> arise from / out of > lead to
> stem from, flow from > cause, produce, prompt, etc.
Introduction to Lega! English
Ricardo Chiesa - L'niversicad Austral
AGREEMENT CONNECTION AND

REFERENCE
> according to > in relation to

> in accordance with > in connection with
> pursuant to > ... relating to ...
> in pursuance of > ... concerning ...
> (as) per > in respect of
> as provided / permitted / set > with respect to

forth / stated, etc., in / by > regarding
> as regards
> with / in regard to
> with reference to
> following ...
RESERVATIONS AND COMPARISON, CONTRAST

LIMITATIONS AND SIMILARITY
> Subject to ... > In comparison (with)

> Except as (otherwise) provided, > As compared to
etc. > like / as
> Except for
> With the exception of
> Notwithstanding
> while, whilst

> Without prejudice to > whereas
> Without derogating from > unlike
> provided, however, that... > In / By contrast, ...
> (Except) to the extent permitted, > In contrast to
prohibited, etc. ... > In contradistinction to
> As opposed to
> Similarly
> Likewise
> be the same as
> be different from / differ from ...
in that...
AGREEMENT CONNECTION AND

REFERENCE
> according to > in relation to

> in accordance with > in connection with
> pursuant to > ... relating to ...
> in pursuance of > ... concerning ...
> (as) per > in respect of
> as provided / permitted / set > with respect to

forth / stated, etc., in / by > regarding
> as regards
> with / in regard to
> with reference to
> following ...
RESERVATIONS AND COMPARISON, CONTRAST

LIMITATIONS AND SIMILARITY
> Subject to ... > In comparison (with)

> Except as (otherwise) provided, > As compared to
etc. > like / as
> Except for
> With the exception of
> Notwithstanding
> while, whilst

> Without prejudice to > whereas
> Without derogating from > unlike
> provided, however, that... > In / By contrast, ...
> (Except) to the extent permitted, > In contrast to
prohibited, etc. ... > In contradistinction to
> As opposed to
> Similarly
> Likewise
> be the same as
> be different from / differ from ...
in that...
PURPOSE EMPHA TIC NEGA TION
> to > Under / In no circumstances

> in order to > On no account
> so as to > In no case
> so that > In no way
> in order that > In no event
> for the purpose of > On no occasion
> with the aim of > By no means
> with a view to
> with the intention of
introduction to Legal English 14
Ricardo Chiesa - UnversiadAustral-
LEXIS AND MEANING:

SOME USEFUL CONCEPTS
Term - Term of Art - Word of Art
A lexical item or a group of lexical items (a word or a phrase) which occurs in

a particular discipline or subject matter. A word or expression that has a
particular meaning, especially in a technical or scientific subject or field.
E.g. "Easement", "MisdemeanorJ', "Breach of contract", "Holder in due

course", "Liquidated damages" are all legal terms.
N.B. Many legal terms originate In the common speech or general language,
but acquire a specific meaning when used in the field of Law.
E.g. "Serve", "Avoid", "Counterpart", "Consideration", "Interest".
Collocation
Two or more words that normally or naturally occur together. A grouping of

words which naturally go together through common usage. The way in which
certain words are often used or tend to be used together.
E.g. (in General English) "perform an operation", "hold a discussion" (but

not *perform a discussion, *hold an operation), "heavy smoker", "broad
experience", "by a narrow margin", "frame of mind".
(in Legal English) "reach a verdict, "pass judgment", "enter into a

contract, "false imprisonment", "constructive dismissal".
Polysemy (Polysemous Words)
The fact that a word has two or more meanings. Such different meanings may
usually be traced to psychological, historical or metaphorical associations.
E.g. (in Genera! English) "question" as "an interrogative sentence" and as "an
issue or matter to be discussed or settled"; "to cry" as "to shed tears"
and as "to call in a loud voice"; "neck" as a part of the human body and
the "neck" of a bottle; "field" as "an area of land" and as "a branch of
knowledge or area of activity".
(in Legal English) "to execute" as "to complete in proper form, by signing
and/or delivering", and as "to put to death in compliance with a judicial
death sentence"; "force" as in "irresistible force" and as in "in full force
and effect".
Homonyms
Two or more words which are identical in form (= spelling) and pronunciation
but have different meanings.
E.g. (in General English) "bear" (the animal) and "bear" (= tolerate); "bank"
(where you keep your money) and "bank" (of a river or lake); "firm" (=
a company) and "firm" (= fixed in place).
N.B. Homonyms are usually listed as separate entries in language

dictionaries.
E.g. (in Legal English) "capital" as in "capital punishment" and "capital" as

in "paid-in capital"; "gross" as in "a gross abuse of trust", "gross
income" and "easement in gross".
Hyponyms and Superordinate or "Umbrella" Terms
Hyponyms are words whose meaning is included in the meaning of a more

general word. This general word is the superordinate or "umbrella" term. The
semantic relationship is established in terms of a genus-species relationship.
E.g. (in General English) "green", "orange", "blue", "purple" are all
hyponyms of the superordinate term "color" and co-hyponyms of one
another.
E.g. (in Legal English) "larceny", "embezzlement", "rape", "manslaughter"

are all hyponyms of the term "crime", "corporation", "partnership",
"limited liability company" are all hyponyms of the term "business
organization".
Lexical Gap
The absence of a word in a particular place in a lexical field of a language.
E.g. In Spanish there is no single word to cover the terms "hermano" and
"hermana", so there is a lexical gap there, whereas in English the term
"sibling" covers both "brother"' and "sister".
E.g. (in Legal English) No single word exists that can cover the meaning of
the terms "legacy", "devise" and "bequest".
Cognates
Words in different languages that are similar to each other in form,

pronunciation and meaning because of their common origin.
E.g. "Hospital" - "Hospital"] "Instalar" - "Install", "Distancia" - "Distance"

False Cognates - "False Friends" - "Faux Amis"
Words in different languages that are similar to each other in form and
pronunciation, but totally or partially different in meaning. "Partial
false cognates" are those words that sometimes behave as cognates
and sometimes as faise cognates, depending upon their different
meanings.
Total false cognates:
E.g. (in General English and Spanish) "actually"- "actualmente" ;

"library"- "librera": "sensible"- "sensible": "recollect"-
"recolectar": "impede"- "impedir".
Partial false cognates:
E.g. (in General English and Spanish) "argument" meaning

"argumento, argumentacin" and meaning "discusin, pelea":
"rare" as "raro" (= infrecuente) and as "poco cocido".
N.B. When it comes to Legal English and Legal Spanish, most 'false
cognates' are only 'partial faise cognates'.
E.g. "offense" 1) - infraccin; delito

2) = ofensa
"condemn" 1) = expropiar; declarar un bien susceptible de

expropiacin
2) = condenar
"sentence" = sentencia condenatoria (exclusivamente en el mbito penalj

iHirodBCtiCB t o Legal Engfis h 18
Rtcardo Chlesa - Universidad Austral -
ASSIGNMENT:
Please read the following excerpts from a standard LLC Operating

Agreement and find examples of:
1. Deictic terms
2. Set phrases or "fossilized" forms
3. Doublets or triplets
4. Use of modal verbs
5. Use of passive voice
6. Reduced or verbless clauses
7. Inversion of word order
8. Use of "such" and "said"
9. Provisos
10. Emphasis and redundancy
11. Use of "legal" prepositions and prepositional phrases
12. Capitalization
Introduction io Lega! English ]9
; Ricardo Chiesa - Universidad Austral -
1 LIMITED LIABILITY COMPANY OPERATING A G R E E M E N T

2
3 FOR
4
5 [Insert Name of LLC]
6 A Manager-Managed Limited Liability Company
7
8
9 THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") is
10 made and entered into this day of , 20
11 by: [insert name(s) of Manager(s)]
12 and each individual or business entity later subsequently admitted to the Company.
13 These individuals and/or business entities shall be known as and referred to as
14 "Members" and individually as a "Member."
15
16
17 [Insert Member names]
18
19
20 As of this date the Members, through their agent, ,
21 have formed the Limited Liability
22 Company named above under the laws of the State of New York. Accordingly, in
23 consideration of the conditions contained herein, they agree as follows:
24
25
26 ARTICLE I
27
28 Company Formation and Registered Agent
29
30 1.1 FORMATION. The Members hereby form a Limited Liability Company
31 ("Company") subject to the provisions of the Limited Liability Company Act as
32 currently in effect as of this date. A Certificate of Formation shall be filed with the
33 Secretary of State.
34
35
36 1.2 NAME. The name of the Company shall be: ,
37 L.L.C.
38
Introduclioa to Legal English 20
Ricardo Cii$a - Universidad Austral -
39 1.3 REGISTERED OFFICE AND AGENT. The location of the registered office of
40 the Company shall be:
41
42
43 1.4 TERM. The Company shall continue for a period of [insert term length]
44 unless dissolved by:
45
46 (a) Members whose capital interest (as defined in Article 2.2) exceeds 50 percent
47 vote for dissolution; or
48
49 (b) Any event which makes it unlawful for the business of the Company to be
50 carried on by the Members; or
51
52 (c) The death, resignation, expulsion, bankruptcy, retirement of a Member or the
53 occurrence of any other event that terminates the continued membership of a
54 Member of the Company; or
55
56 (d) Any other event causing a dissolution of a Limited Liability Company under the
57 laws of the State of N e w York.
58
59 .
60 1.5 CONTINUANCE OF COMPANY. Notwithstanding the provisions of
61 ARTICLE 1.4, in the event of an occurrence described in ARTICLE 1.4(c), if there
62 are at least two remaining Members, said remaining Members shall have the right to
63 continue the business of the Company. Such right can be exercised only by the
64 unanimous vote of the remaining Members within ninety (90) days after the
65 occurrence of an event described in ARTICLE 1.4(c). If not so exercised, the right
66 of the Members to continue the business of the Company shall expire.
67
68
69 1.6 BUSINESS PURPOSE. The purpose of the Company is to engage in any
70 lawful act or activity for which a Limited Liability Company may be formed
71 pursuant to the Limited Liability statutes of the State of New York.
72
73
74 1.7 PRINCIPAL PLACE OF BUSINESS. The location of the principal place of
75 business of the Company shall be: [insert principal place of business address] or at
76 such other place as the Managers from time to time select.
77
78 1.8 THE MEMBERS. The name and place of residence of each member are
79 contained in Exhibit 2 attached hereto.
80
81
82 1.9 ADMISSION OF ADDITIONAL MEMBERS. Except as otherwise expressly
83 provided in the Agreement, no additional members may be admitted to the Company
84 through issuance by the company of a new interest in the Company without the prior
85 unanimous written consent of all of the Members.
86
87
88 ARTICLE 2
89 Capital Contributions
90
91
92 2.1 INITIAL CONTRIBUTIONS. The Members initially shall contribute to the
93 Company capital as described in Exhibit 3 attached to this Agreement. The agreed
94 value of such property and cash is $ [insert amount] _ .
95
96 2.2 ADDITIONAL CONTRIBUTIONS. Except as provided in ARTICLE 6.2, no
97 Member shall be obligated to make any additional contribution to the Company's
98 capital.
99
100 (...)
101
102
103 ARTICLE 4
104
105 Management
106
107 4.1 MANAGEMENT OF THE BUSINESS. The name and place of residence of
108 each Manager is attached as Exhibit 1 hereto. By a vote of the Members holding a
109 majority of the capital interests in the Company, as set forth in Exhibit 2 as amended
110 from time to time, the Members shall elect so many Managers as the Members
111 determine, provided, however, that they shall elect no fewer than two Managers and
112 that one Manager shall be elected by the Members as Chief Executive Manager.
113
114
115
116 4.2 MEMBERS. The liability of the Members shall be limited as provided under the
117 laws of the New York Limited Liability statutes. In no event shall Members that are
118 not Managers take any part whatever in the control, management, direction, or
119 operation of the Company's affairs, nor shall they have any power whatsoever to
120 bind the Company. The Managers may from time to time seek advice from the
121 Members, but they need not accept such advice, and at all times the Managers shall
122 have the exclusive right to control and manage the Company. No Member shall be
123 an agent of any other Member of the Company solely by reason of being a Member.
124
125
126 (...)
127 Bookkeeping
128
129 6.1 BOOKS. The Managers shall maintain complete and accurate books of account
130 of the Company's affairs at the Company's principal place of business. Such books
131 shall be kept and maintained on such method of accounting as the Managers shall
132 select. The company's accounting period shall be the calendar year.
[THE LANGUAGE OF CONTRACTS]
TRADEMARK SUBLICENSE AGREEMENT
This Agreement made and entered into as of by and between LICENSOR

LLC, a limited liability company organized ad existing under the laws of the State of
Delaware, having its principal office at 400 Marriot Drive, Nashville, Tennessee 37214,
USA (hereinafter called "LICENSOR"), and ABC Argentina S.A.I.C., a corporation
organized and existing under the laws of Argentina, having its principal office at Cuyo 271
(1836), Liavallol, Buenos Aires, Argentina, (hereinafter call LICENSEE").
WITHNESSETH THAT:
WHEREAS, Licensing Services, Inc., a corporation duly formed and existing under the
laws of the State of Delaware, having offices at 400 Marriott Drive, Nashville, Tennessee
("LS"), has acquired and now owns all of the ABC trademarks ("ABC Trademarks") to
LICENSEE under the April 1, 1982 Trademark License Agreement between LICENSEE
and LICENSOR'S predecessor, and
WHEREAS, LS and LICENSOR have entered into the Trademark License Agreement
effective as of December 1, 2001 (hereinafter called "2001 Agreement") wherein LS
granted LICENSOR the right to sublicense ABC Trademarks to certain companies,
including LICENSEE, and
WHEREAS, LICENSEE desires to manufacture products bearing ABC Trademarks at its

facilities in Argentina and to seli them worldwide, and
WHEREAS, LICENSOR desires to grant such a sublicense under ABC Trademarks to

LICENSEE,
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1: DEFINITIONS
1.1 "Products" shall have the same meaning as specified in the 2001 Agreement.
1.2 "ABC Trademarks" shall mean all Argentine trademark registrations and
applications and unregistered trademarks owned by LS relating to Products as presently set
forth in Exhibit A attached to this Agreement and all future pending, issued or common law
ABC trademarks in Argentina relating to Products.
1.3 "Net Sales Price" shall have the same meaning as specified I the 2001 Agreement.
VERSION AS OF MAY 17, 2004
ARTICLE 2: LICENSE
In accordance with the 2001 Agreement, LICENSOR hereby grants to LICENSEE the right
and license to use ABC Trademarks to manufacture Products in Argentina and to use ad
sell such Products worldwide unless otherwise modified by LICENSOR. LICENSOR
hereby also grants to LICENSEE the right to "ABC" as a trade name.
ARTICLE 3. LICENSE FEE
3.1 In consideration of the rights and license granted hereunder by LICENSOR in

accordance with Article 2 of this Agreement, LICENSEE shall pay to LICENSOR a royalty
equal to one-half of one percent (0.50%) of the Net Sales Price of Products bearing ABC
Trademarks until the expire of this agreement.
3.2 With thirty (30) calendar days of the end of each calendar half year (June 3 and
December 31), LICENSEE shall pay t LICENSOR in U.S. Dollars (or in such other
currency or at such other place as LICENSOR may LICENSOR may specify) at Akron,
Ohio (USA), the licensee fee provided for in subparagraph 3.1 for the use of ABC
Trademarks, calculated as of the last day of each calendar half year, as follows.
(i) Net Sales Price for that calendar half year shall be determined and then
converted to U.S. Dollars at the average rate of exchange in effect during
such period at which one U.S. Dollar may be purchased for the least amount
of pesos and available for payments of this kind, and
(ii) The rate of the license fee shall the be applied to Net Sales Price for that
calendar half year in U.S. Dollars and the result shall be the license fee
which is payable by LICENSEE for that calendar half year.
If any amount payable by LICENSEE to LICENSOR hereunder is not received by

LICENSOR on the due date at the designated place of payment, the such amount shall bear
interest commencing on the due date and ending on the date it is paid in full by LICENSEE
at a rate equal to two percent (2%) per annum over the then current prime lending rate of
The Chase Manhattan Bank, N.A., New York, N.Y. (USA).
3.4 The payment to LICENSOR of the fees provided for in this Agreement shall be free
of any taxes, charges, currency conversion, or remittance fees, whether levied by the
Central, regional, or municipal governments in Argentina, or by other authorities, except
for such tax which may be expressly required by the laws of the governments in Argentina
to be paid or withheld for the account of LICENSOR. The payment of any such income
taxes levied upon or withheld from fees, compensations, or other payments due to
LICENSOR, and the filing of any information or tax returns with respected thereto, shall be
the responsibility of LICENSEE, who shall be liable to LICENSOR with respect to an
amounts, fines, or penalties arising out of or resulting from ay failure, delay, or error in
discharging the aforesaid obligation. LICENSEE shall promptly provide LICENSOR with
receipts of payments relating to such income tax and such other documentation as
LICENSOR reasonably request.
3.5 If the effective rate of the rate of the Argentine tax applicable to fees, compensation
and payments hereunder, should exceed the then current United States tax rate applicable
to the same form of income, then LICENSEE shall gross up the payments so that
LICENSOR is held harmless from and is indemnified for any reduction in net proceeds of
any fee, compensation or other payments hereunder caused by and resulting from the
effective tax rate of Argentina exceeding the applicable United States tax rate.
ARTICLE 4: USE OF TRADEMARKS
The parties shall cooperate with each other in establishing proof of use of ABC Trademarks
as required to permit renewal of ABC Trademarks ad shall comply with all requirements to
ensure that use of A.BC Trademarks by LICENSEE hereunder inures to the benefit of LS.
The application for ad renewal of ABC Trademarks shall be solely as the discretion of LS.
ARTICLE 5: QUALITY CONTROL OF PRODUCTS
5.1 LS and its representatives, specifically LICENSOR or its designee, shall have the
right, at its expense, to inspect at all reasonable times any Products in relation to which
ABC Trademarks are to be used hereunder, as well as the methods of manufacture, in order
to assure adequate quality control and compliance as to specifications including, without
limitation, raw materials are furnished by LS approved suppliers; LS approved materials,
manufacturing specifications ad formulae are used; and LS approved designs, including
tread designs, are used with certain ABC Trademarks.
5.2 LS may request LICENSEE to send reasonable quantity of samples of Products with
ABC Trademarks at LICENSEE'S costs to either LICENSOR or LS.
5.3 Should LS ever notify LICENSEE that any of the Products fail to comply with LS
formulae, standards, specifications and instructions, LICENSEE shall either promptly
proceed to correct such non-compliance in accordance with LS's instructions or shall cease
the manufacture of such Products using ABC Trademarks so long as any non-compliance
continues and is not corrected.
ARTICLE 6: TRADEMARK PROTECTION
6.1 LICENSEE acknowledges that ABC Trademarks are part of the goodwill of LS and
LICENSOR business and that they shall not at any time door suffer to be done any act or
thing which will in any way impair LS proprietary rights in and to ABC Trademark. It is
understood that, except for the right to use ABC Trademarks to identify Products,
LICENSEE hereunder shall not acquire and shall not claim, whether by reason of this
Agreement, by use or otherwise, any right, title, or interest, direct or indirect, in ABC
Trademarks belonging to LS.
6.2 LICENSEE shall not se any marks or names identical with or confusingly similar to
ABC Trademarks, except as specifically agreed by the parties in writing, and shall not raise
or caused to have raised any questions concerning or objections to the validity of the ABC
Trademarks or to the right of LS thereto, on any grounds whatsoever.
6.3 LICENSEE agrees to exercise diligence in locating possible infringement of, or

unfair competition affecting, ABC Trademarks in the jurisdictions of LICENSEE
operations. The parties shall immediately inform each other in writing of any such situation
which comes to their individual attention and shall furnish such information and render
such assistance in connection therewith as may be reasonably requested. In such event, LS
or LICENSOR on behalf of LS may be reasonably requested. In such event, LS or
LICENSOR on behalf of LS may take all necessary action to restrain such infringement or
unfair competition and to recover damages therefore.
6.4 LICENSEE shall not do any act or thing which might injure the reputation of any
ABC Trademarks or affect adversely LS right therein.
6.5 LICENSEE shall comply with all laws and regulations applicable to ABC
Trademarks, and its registration and use, in the jurisdictions of the LICENSEE operations.
ARTICLE 7: CLAIM ADJUSTMENTS
LICENSEE shall assume the cost of all claim adjustments required to be made on any
Products which it manufactures with ABC Trademarks and sells for the local market or
exports. LICENSEE shall, upon request, reimburse LS or its designee for the cost of any
claim adjustments required to be made by LS or its designee to any Products produced by
LICENSEE. The purpose of this provision is to assure LS and LICENSOR'S worldwide
reputation for quality and service.
ARTICLE 8: INDEMNITY
LICENSEE shall indemnify and defend LICENSOR and LS and their officers, directors,
employees, subsidiaries, affiliates, and licensees from and against any and all claims, suits,
actions, causes of actions and proceedings of any kind or nature and shall hold LICENSOR
and LS and their officers, directors, employees, subsidiaries, affiliates and licensees
harmless from any damages injuries and costs, including attorney fees, costs of defense or
other expenses of any kind or nature arising from or relating to any Products with ABC
Trademark manufactured or sold, or any services rendered by LICENSEE, and any use by
LICENSEE of Firestone as a trade name.
ARTICLE 9: GOVERNMENTAL APPROVAL - CHANGE IN LAWS
9.1 The parties shall jointly obtain all governmental and other approvals, consents,
licenses and registrations required under law for the execution, effectiveness and
performance of this Agreement and any renewals thereof on a worldwide basis.
9.2 In the event of any change, during the term of this Agreement in the laws,
requirements, or regulations of any government which impairs the performance of
obligations under this Agreement, or in the event of the withdrawal or modification of any-
material approval given by any government with regard to this Agreement, each of the
parties shall have the right, after consultation, to suspend performance of the affected
obligations until such time as full performance can be resumed.
ARTICLE 10: TERM
10.1 This Agreement shall be deemed effective as of April 1, 2004, and shall continue in
effect until (i) its tenth (10th) anniversary, (ii) termination of the 2001 Trademark
Agreement, (iii) transfer at any time by BSA Holding, Inc. (BSA), LICENSOR'S parent
company (except to a BSA subsidiary or affiliate) of its equity interest of BSA drops below
51%, or (iv) BSA otherwise loses control of LICENSEE, whichever fist occurs.
10.2 This Agreement shall be deemed to be extended and be effective, subject to

appropriate government approval, during successive five (5) year periods commencing
upon its tenth (10th) anniversary unless (i) notice of termination by either party is received
at least six (6) months before the end of the initial or any succeeding periods, or (ii) this
Agreement has otherwise come to an end in accordance with subparagraph 10.1.
ARTICLE 11: NOTICES
Any notice to be given hereunder shall be in writing and delivered personally or by

facsimile (confirmation copy by registered mail) to the parties at their respective addresses
set forth below:
(a) If to LICENSOR:
ABC, LLC,
400 Marriot Drive
Nashville, Tennessee 37214
Attention: President
Facsimile Number:
(b) If to LICENSEE:
ABC Argentina S.A.I.C.

Cuyo 271 (1836)
Llavallol
Buenos Aires, Argentina
Attn.: President
Telefax N: 54 11 4322-4189
Or to such other addresses as may be from time to time furnished in writing by any party
thereto.
ARTICLE 12: GENERAL PROVISIONS/ MISCELLANEOUS
12.1 NO ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; provided, however, that
LICENSEE may not transfer or assign this Agreement, in whole or in part, without the
prior written consent of LICENSOR.
12.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereby. Neither this Agreement
nor any part hereof may be amended, waved, changed or in any way modified except in
writing executed with the same formality as this Agreement.
12.3 SEVERABILITY. In any provision of this Agreement is declared null and void or
otherwise becomes ineffective, the remaining provisions shall nevertheless continue in full
force and effect and be enforceable in accordance with their terms, in which case the parties
shall use their best efforts to agree on an equitable provision replacing the provision
declared null or void.
12.4 NO WAIVER. The failure by ether party to insist upon strict performance of any
covenant or condition of this Agreement, in any one or more instances, shall not be
construed as a waiver or relinquishment of any such covenant or condition in the future but
the same shall be and remain in full force and effect.
12.5 COUNTERPARTS. This Agreement may be executed in one or more counterparts,

each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
12.6 RESOLUTION OF CONFLICTS. All disputes, controversies or claims arising out

of or relating to this Agreement, or for the breach, termination or invalidity thereof, which
are not resolved in accordance with Paragraph 14 of this Agreement within ninety (90)
calendar days after having been referred thereunder, shall be settled by arbitration pursuant
to the Rules of the International Chamber of Commerce (Paris, France) in effect on the date
of this Agreement by an arbitrator chose by agreement of such parties or, if the parties shall
fail to agree upon the person of such arbitrator within thirty (30) calendar days after one
party shall request the other to do so or if the person chosen shall fail or refuse to act as
such arbitrator, then be three (3) arbitrators appointed in accordance with said Rules. The
arbitration shall be conducted in English at new York, New York, United States of
America. The arbitration shall be based upon this English version of this Agreement
approved and executed by the parties on the date hereof. Judgment upon any award
rendered may be entered in an court having jurisdiction or application may be made to such
court for a judicial acceptance of the award or an order of enforcement, as the case may be.
12.7 APPLICABLE LAW. This Agreement shall be construed and interpreted in

accordance with the laws of Tennessee.
12.8 This Agreement terminates all prior agreements between the parties relating to the
subject matter covered by this Agreement.
ARTICLE 13:TERMINATION
13.1 Upon failure of LICENSEE to make any payment as herein provided within thirty
(30) days after it shall have become due and written notice demanding such payment shall
have bee given or in the event of the insolvency or bankruptcy of LICENSEE, or if
LICENSEE'S business shall be placed in the hands of a receiver, trustee or other custodian
or liquidator, LICENSOR may at its option cancel and terminate this Agreement. In
addition to any other rights or remedies which it may have, either party may also cancel and
terminate this Agreement if the other party shall default in the performance of any
obligation hereunder on its part to be performed and such default shall not have been
remedied within thirty (30) days after notice requiring such remedy.
13.2 Upon termination of this Agreement (i) LICENSOR shall have an option to
purchase all or any portion of LICENSEE'S then existing inventory of Products bearing
ABC Trademarks at a commercially reasonable price; (ii) LICENSEE shall immediately
remove from tire molds all references to ABC Trademarks; and (iii) LICENSEE shall as
soon as practicable, but no later than six (6) month after termination, discontinue all use of
or reference to ABC Trademarks and the use of Firestone as a trade name; provided that, in
the event that LICENSOR has elected not to exercise its option to purchase LICENSEE'S
then existing inventory of Products bearing ABC Trademarks under this paragraph,
LICENSEE may continue to sell it's the existing inventory of Products bearing ABC
Trademarks until disposal of all such inventory.
13.3 As soon as practicable but no later than three (3) months after termination,
LICENSEE shall cease the use of the name "Firestone" in its business affairs and shall
execute and deliver to LICENSOR all documents requested by LICENSOR to evidence the
termination of LICENSEE'S right to use the name "Firestone" and the reservation of such
rights to LS.
13.4 The termination of this Agreement shall not relieve LICENSEE of its liability to pay
LICENSOR any amounts due or accrued pursuant to this Agreement to the date of such
termination.
13.5 The rights conferred upon the parties by the provisions of this Article 13 shall be in
addition to, and not in lieu or limitation of, any other legal rights and remedies of the
parties.
ARTICLE 14: AGENT FOR COLLECTION/DISBURSEMT OF FEES
LICENSOR and LICENSEE hereby appoint ABC Holding, Inc., ("ABC") a Nevada
corporation having its principal place of business at 400 Marriott Drive, Nashvilie,
Tennessee 37214, USA, as their agent to collect and disburse any and all fees due under
this agreement.
Other than acting as the collection/disbursing agent, ABC has no involvement in or

ownership of the subject matter of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed in English on the dates specified below.
LLC.
By:
Date:
iqW< H. pf ME
CHAPTER III: STATUTES AND LEGISLATIVE HISTORY 51
C. Terminology Relating to Congressional Action

Congressional action has a language all its own. Set forth below is
terminology peculiar to the legislative process and the meaning of those
terms.
Amendment Addition to bill or resolution; may be made at any time

after introduction; often made to help forge compromise.
Bill Proposed legislation introduced into either or both houses
of Congress.
Chamber Each "house" of Congress may also be referred to as a
"chamber."
Codification Process of adding laws into a code (for example, the
United States Code, see Chapter ELB.).
Enabling Statutes Statute that creates and empowers ("enables") an
administrative agency to act. Also "implementing"
statute.
Public LOYJ Chronological assignment of number to each law.
Assigned when President signs a bill or when a
presidential veto is overridden.
Number comprised of year of congress and chronological
number of bill, separated by hyphen.
Resolution Congressional expression of opinion, thanks, censure,
among other things.
Not a law.
Rider Specific type of amendment; generally attached to bill or
resolution with the specific purpose of coercing
opponents to favor passage of the bill or resolution.
Session Laws Chronological compilation of all laws enacted by a
legislature in a particular legislative session.
Found in Statutes At Large. See Chapter EH.B.
Legal evidence of laws in all courts in U.S.much of this
has been codified.
Not useful as research tool except insofar as a particular
law has not yet been published in a code.
Slip Laws First official form of publication of a federal law.
Separately-paginated pamphlet text of each law.
Designated by public law number.
No index.
Stages of Passage of a Bill Definitions/Further Explanation Finding Tools
cu er en
or o hJ
o o
Introduction of a Bill Draft law Introduced by one or more members of Congress. Congressional Record. er o
" 3 H
3 trs
Often, a bill will be introduced in both chambers simultaneously by respective sponsors in the House CCH Congressional Index. >
and Senate.
o
s "
s
Appropriations bills (i.e., those involving spending of funds) technically must originate in the House er o
er
m
of Representatives. o cu 2

Bill number is assigned, which reflects the chronological number of the bill, the house in which the >
er cu e.
bill is introduced, the number of the Congress, the session, and the year. Z
S P r
CCH Congressional Index. 5, m
Committee/Subcommittee
Assignments
Bach bill is assigned to a relevant committee/subcommittee for consideration.
ft 5 o1 o>
t o
era
cu ce O w r
Subcommittee Hearings/ Testimony by various individuals. CIS Index and Abstracts. en o - o co
*<
Reports Reports/papers filed by Subcommittee upon request or unilaterally by interested persons/industries. CCH Congressional Index. Ol
en co
Report issued by subcommittee on pending bill for consideration by committee and/or full chamber. U.S.C.C.A.N.
O)
en
0
e

Committee Hearing/ Testimony by various individuis. CIS Index and Abstraets. era w s
V. en
Reports Reports/papers filed by Committee upon request or unilaterally by interested persons/industries. CQ Weekly Report. en C3 en co
O) >
Report issued by committee on pending bill for consideration by full chamber. CCH Congressional Index. ft W enr-t-
[Note: Committee Reports are very important sources of legislative history.] U.S.C.C.A.N. < w p
01 FU e01r ft) tu
CL
P tn o co
Floor Debates/Report Floor debates on bill in each ehamber. Congressional Record. o o O
Members may prepare and submit written statements. rt- 1 O
o ' 3 01
0 B ap
a en
ni n
Report of the Joint Committee resolving differences between House and Senate versions of a bill for CIS Index and Abstract. en en C/3 m
o >
presentation to full chamber of each house. U.S.C.C.A.N. C CT ft
52
Conference Report [Note: Conference Reports are very important sources of legislative history.]
CT
rp ap
Congressional Record. en e
> r
Each house votes on Conference version of bill.
CCH Congressional Index. o
3 tn
Simple majority of each house required to pass a bill. er n
Chamber Votes Votes of members of each house recorded. p m
, '"O s
S z
Presentation to President President may: See Chapter IV.E. for 3
o-i T3
n
tu
Sign bill into law; or sources of Presidential 0
Veto bill; or Documents. 3p en
01
O
C
Do nothingbecomes law after 10 days, unless Congress has adjourned ("Pocket veto"). r-t CL h-4
O a
m
Overriding a Veto Two-thirds vote of each chamber required to override a presidential veto. Congressional Record. D
D o u b l i n g ai final c o n s o n a n t s 200
m o s t nearly approximates literary style. a n d syllable bears the main, stress ( h e n c e occur, oc-
amplification b y synonym has b e a t out of curred dffer. djfercd).
bur S o m e of t h e m o r e
rhetorical fashion- f o r hundreds of years. Al- c o m m o n l y m i s s p d l e i w o r d s - non aiready-
though o n e m i g h t well title a diaxds will Last mentiottcd-axe t h e s e biased, busing (q.v.), com- i
Win and Testament; bated, focused. benefited transferred.
if o n e were to write art
o p i n i o n c o n s t r u i n g t h a t document, it would:
b e b e t t e r to- begim. " I n this appeal w e a r e d o u b t . A_ Doubt that 5- doubt whether: Ther
called; uponr to- c o n s t r u e t h e disposition of f o r m e r is used primarily in n c g a r i v e sentences-
in-Jakrr Doc's will"
realty Johrr rather than "in arid in questions. E g . . " W e do n o r doubt thai
DotS last w{U and testament.'.' h a d t h e rime spent i n f e d e r a l prison, n o t beert-
terms tend condi-
Yet o n e m i g h t well write credited to a n y sentence, appellant: w o u l d be-
tionsu if b y t h e inclusion, of both words a mentitled. t o h a v e t h a t prison, l i m e credited.,
a d d e d . n u a n c e is intended. That, is t h e test in a g a i n s t h i s state s e n t e n c e . " Daube whether i s
used i n positive assertions^ E g . . ' W e doubt-
ordinary legal prases I s a shade of m e a n i n g
whether such conduct falls-within t h e a m b i t of
supplied b y t h e second on third synonym, or
a p p e l l a n t ' s duties as- s u p e r v i s o r . "
is k j u s t s o m a ch deadwoodZ."
B . Followed b y a Negative. Doubt c a n b e a;-
D O U B L I N G . O F ' FINAL- CONSONANTS. c o n f u s i n g word w h e n f o l l o w e d b y a negative,
Unaccented syllables in inflected words are as Iru "T doubt w h e t h e r t h e Court will n o t take
sometimes spelled differently in A m i and in [ h e f u r t h e r step w h e n n e c e s s a r y . " T h i s s e n -
BrE- Americans generally do not double a t e n c e m e r e l y states t h a t t h e w r i t e r t h i n k s
final A- before t h e inflectional suffix, whereas c o u r t s will take t h e f u r t h e r step of which, h e
the British generally do. Thus initialed and ini- speaks.
tiaiing (Ami) but initialled and iniiiaOmg (BrE).
A n u m b e r of o t h e r words follow this para- d o u b t l e s s l y ) . Doubtlessly is incorrect for
digm, e.g., cancel. labeL marshal parol signal doubtless (a mild expression of certainty), no
total, travel a n d unravel doubt (a stronger expression of certainty), or
.The British always double the final conso- undoubtedly (the strongest of these three
nant after a full vowel in wortis such as kid- expressions of certainty). T h e w o r d doubtless is
napped. -ing a n d worshipped. -ing. In the U.S., itself a n adverb (the F r a m e r s doubtless feared
kidnapping is preferred over kidnaping (see t h e executive's assertion of a n i n d e p e n d e n t
a b d u c t i o n ) as a n exceptional facta (cf. for- military authority u n c h e c k e d by t h e p e o p l e ) ;
matted. formatting), though worshiped, -ing fol- t h e r e f o r e , doubtlessly is u n n e c e s s a r y . E.g.,
lows the general American rule, programmed " H a d Zellars been.driving in t h e w r o n g lane
and programming are the preferred spellings h e w o u l d doubtlessly (read doubtless| have had a
on both sides of the Atlantic, the single -m- little m o r e time and a b e t t e r c h a n c e to avoid
spellings being secondary variants in A m i : striking the child."/ " W h i l e it is not impossi-
for the probable reason underlying this Amer- ble to say precisely w h e n m e n first arrived in
ican inconsistency, see p r o g r a r o ( m ) e r . North America, doubtlessly read doubtless] the
The British-American split is seen also in original Americans e m i g r a t e d f r o m Asia at
words.. like 'jewct(l)cr, pupil(l)aae. and least fifteen thousand y e a r s ago- and entered
travc!(l)er, t h e British pre/erring two -f-s t h e c o n t i n e n t during t h e Pleistocene epoch,
rather t h a n t h e o n e used by Americans. Writ- or Ice Age, by way of t h e Bering Land
ers- and editors should m a k e themselves Bridge." See d e a r l y .
aware of these m i n o r differences in spelling,
and be wary of inserting sic (q.v.) when quot- d o u b t of for douht about; E.g.. " T h e lan-
ing a foreign t e x t . g u a g e of t h e statui- eaves n o - d o u b t o / [ r e a d
Apart from w e p i s ending in -I- and excep- about) its i n t e n t . " S HTPALLAGE.
tions- noted [kidnapping, programming, and
worship(p)ed). ail English-speaking countries d o w a b l e = entitled to d o w e r , q.v. E.g. "A
follow the s a m e rules on doubling. When a w i f e is dawable in equity of all lands in w h i c h
suifix beginning with a vowej is added, the h e r h u s b a n d possessed a b e n e f i c i a l interest ao
final c o n s o n a n t of t h e word is re --ated only t h e l i m e of his death."/ " A c c o r d i n g to t h e
if 1) t h e v o w d sound p r e c e d i n g r e conso- e a r l y English c o m m o n law, t h e w i d o w of a
nant is represented by a single l>. er (hence trust b e n e f i c i a r y was not dockable i n t h e trust
i-'d. bidding b u t head, heading); or (2) the final p r o p e r t y because o n e cbuM riot be seised of a n
WORDS OF AUTHORITY 941
cussion of the general problem, see Robert use the premises for general office purposes; or (fa)
Eagleson & Michele Asprey, Must We Continue The tenant may use the premises only for general
with "Shall"? 63 Austl. L.J. 75 (1989); Robert office purposes. Which meaning is correct? Per-
Eagleson & Michele Asprey, We Must Abandon haps somebody should litigate the question so
"Shall," 63 Austl. L.J. 726 (1989); Jim Main, that we might all find out.
"Must" Versus "Shall," 63 Austl. L.J. 860 (1989); In private draftingcontracts as opposed to
Michele Asprey, Plain Language for Lawyers 149- statutes, rules, and regulationssome drafters
52 (1991); Joseph Kimble, The Many Misuses of consider must inappropriately bossy. The word
"Shall," 3 Scribes J. Legal Writing 61 (1992); may strike the wrong tone particularly when both
Michele Asprey, "Shall" Must Go, 3 Scribes J. parties to a contract are known quantities, such
Legal Writing 79 (1992). For a contrary (and un- as two well-known corporations. It seems unlikely
persuasive) point of view, see J.M. Bennett, In that, for example, an American car manufacturer
Defence of "Shall," 63 Austl. L.J. 522 (1989); J.M. and a Japanese car manufacturer engaging in a
Bennett, Final Observations on the Use of "Shall," joint venture would want the word must to set
64 Austl. L.J. 168 (1990). forth their various responsibilities. Indeed, it
A major cause of the litigation over shall, as seems odd to draft one's own contractual respon-
Kimble observes in his thoughtful essay, is the sibilities with must: a lawyer for Ford Motor Com-
relative strength of the word. That is, what are pany is unlikely to write Ford must . . . Ford
the consequences when somebody fails to honor a must . . . Ford must . . . . The word will is
contractual or statutory duty? If it's a contractual probably the best solution here. See (D).
duty, does a failure to honor a sAaZI-provision On the other hand, in a consumer contract or
always amount to a breach? Does it entitle the other adhesion contract, must is entirely appro-
other party to rescind? If it's a statutory require- priate for the party lacking the bargaining power.
ment, does a violation invalidate the proceedings? In the 1994 revision of its form residential lease
Or is it merely a directory provision? This unclar- a document signed by a million Texas residents
ity about consequences is a continuing problem in every yearthe Texas Apartment Association
any system that we adopt, however linguistically changed the traditional shall to either must or
principled that system might be. will. The landlord became we, and the tenant
B. Shall not. Under the American rule (see A), became you, so that the form reads as follows:
this phrasing works as long as it means "has a You must . . . You must . . . You must. . . We
duty not to." Thus, "Thou shalt not steal" works, will. . . We will... We will.... Although one
but not "The money shall not remain in the court's might think that the resulting tone would be
registry for more than 30 days." In the latter irksome, none of the typical users on whom the
example, the proper choice is either must not or form was tested expressed that thought. Indeed,
may not. See (F). the distinctive use of must for the tenant and will
C. Must. Under the American rule (see A), this for the landlord is very much in keeping with the
word means "is required to" and is used primarily natural rhetoric of an adhesion contract. And it
when an inanimate object appears as subject of certainly informs the consumer precisely what his
the clause. Hence, "Notice must be sent within 30 or her obligations are.
days." Must is a useful device to uncover client misun-
Under the ABC rule (see A), must denotes all derstandings about obligations. Thus, some law-
required actions, whether or not the subject of yers use it despite the danger of a bossy tone.
the clause performs the action of the verbe.g.: And, because present-tense drafting reduces the
"The employee must send notice within 30 days."/ incidence of must, the musts that remain in a
"Notice must be sent within 30 days." given document willin many contextsoffend
The advantage of must over shall is that its no one.
meaning is fastened down more tightly in any D. Will. This word, like any other, ought to
given sentence. Take, for example, a sentence bear a consistent meaning within any drafted
from a widely used commercial lease: "The prem- document. Two of its possible meanings are dis-
ises shall be used by the tenant for general office cussed in (c): it may express one's own client's
purposes and for no other purposes." Once one obligations in an adhesion contract (as in a resi-
decides to follow the ABC rule, the dilemma in dential lease), or it may express both parties'
meaning becomes clear: are we mandating some- obligations when the relationship is a delicate one
thing with that sentence (use of the premises), or (as in a corporate joint venture).
are we merely limiting the tenant's freedom to There is still a third possibility: if a future
use the premises for other purposes? One might tense really is needed, as to express a future
revise the sentenceremoving the PASSIVE contingency, then will is the word. But this cir-
VOICEin either of two ways: (a) The tenant must cumstance in not common, as the best drafting
942 w o r d s of c o n v e y a n c e
should generally be in the present, not the future, . . "), use only words of authority. An adherent
t e n s e . S e e STATUTE DRAFTING CC). of the American rule would make each of the
E. May. This term, very simply, means "has above items the employee shall; an adherent of
discretion to; is permitted to." It should be the the ABC rule would make each one the employee
only term used to denote these senses. Thus, one must.
would never write the licensee is free to sell as The careful drafter might consider adopting ei-
many units as it desires, as opposed to the licensee ther of the following glossaries, preferably the
may sell as many units as it desires. latter:
Sometimes, may should replace shalle.g.: "No
American Rule
person shall [read may] set off fireworks without
the prior authorization of the fire marshal." That shall = has a duty to
sentence does not negate a duty; it negates per- must = is required to [used for all re-
m i s s i o n . S e e (A) & STATUTE DRAFTING (C). quirements that are not du-
F. Must not; may not. These two are nearly ties imposed on the subject of
synonymous. Must not - is required not to. May the clause]
not = is not permitted to. For those following the may not = is not permitted to; is disal-
ABC rule (see A), the phrase must not is usually lowed from
the more appropriate wording. must not = is required not to; is disal-
Some drafters avoid may not because it is some- lowed from; is not permitted
times ambiguousit can mean either "is not per- to
mitted to" or (esp. in AmE) "might not." For exam- may = has discretion to, is permit-
ple, an application to a law school states: "This ted to
office may not consider applications received after is entitled to = has a right to
April 30." Some readers would take that to mean will = (expresses a future contin-
t h a t the office has discretion whether to consider gency)
applications received after April 30, whereas oth- should = (denotes a directory provi-
ers would infer that some rule or regulation pro- sion)
hibits the office from doing so.
G. Is entitled to. This is the wording for ex- ABC Rule (Preferred)
pressing an entitlement. It means "has a right
to." E.g., "The guardian ad litem shall [read is must = is required to
entitled to] be reimbursed for expenses reasonably must not = is required not to; is disal-
incurred." See (A). lowed
H. Using a Consistent Glossary. A disciplined from; is not permitted to
drafter uses words of authority consistently. This may = has discretion to, is permit-
involves, in part, restricting the vocabulary by ted to
which one sets forth duties, rights, prohibitions, may not = is not permitted to; is disal-
and entitlements. The drafter who proliferates lowed from
ways of wording duties, for example, flirts with is entitled to = has a right to
the danger that somebody interpreting the docu- will = [one of the following:]
mentmost disastrously, in courtwill presume a. (expresses a future contin-
that a difference in wording imports a difference gency)
in meaning. b. (in an adhesion contract,
Yet drafted documents are commonly riddled expresses one's own cli-
with inconsistencies. It is not uncommon, in ent's obligations)
American contracts,' to find the following varia- c. (where the relationship is a
tions in paragraph after paragraph: delicate one, expresses
both parties' obligations)
"The employee shall follow . . . should = (denotes a directory provi-
"The employee agrees to follow . . . ." sion)
"The employee is to follow . . . ."
"The employee must follow . . .
words of conveyance are the wordsusu. DOU-
"The employee understands her duty to follow
BLETS, TRIPLETS, AND SYNONYM-STRINGSthat ef-
fect a transfer of ownership in a deed. In a war-
"The employee will follow . . . ."
ranty deed, for example, the standard words of
"It is the responsibility of the employee to follow
conveyance are convey and warrant ox grant, bar-
gain, and sell; in a quitclaim deed, the words
The better practice are usu. remise, release, and forever quitclaim or
is tills : after the lead-in (which convey and quitclaim.
states, "The parties therefore agree as follows:
UM?ri
BY KENNETH A. ADAMS
Making rule developed many exceptions.
I
F YOU want to take control of your T h e rule and its exceptions have largely
c o n t r a c t d r a f t i n g , as opposed t o
regurgitating tire language of whatever Sense of b e e n a b a n d o n e d i n c o m m o n usage,
"shall" is rarely used to indicate future time
Shall'
c o n t r a c t models you happen to b e and barely survives in its modal form. But
using, you'll have to decide what to d o in t h e stylized c o n t e x t of the language
with "shall." of business contracts, which as a general
Here's where things currently stand in matter use only the third person, "shall"
the United States: O n the one hand, t h e continues to serve as the principal means
corporate bar is addicted to "shall," wich of expressing obligations.
business contracts e x h i b i t i n g r a m p a n t
overuse of the word. O n t h e other h a n d , The Problem of Overuse
some commentators o n legal writing insist But contract drafters use "shall" to do
that "shall" be dropped from contracts. T h e more t h a n express obligations. They use
most vocal is perhaps Bryan Garner, editor it t o express future time, and "shall" also
in chief of Black's Law Dictionary a n d A fresh look at an overused word creeps into contexts that have nothing to
author of many books on legal writing. A do w i t h expressing obligations or future
useful statement of that view, albeit from t i m e . It s o m e t i m e s seems as if drafters
an Australian perspective, can be found in Background suspect t h a t a c o n t r a c t provision won't
"Plain Language for Lawyers," by Michle be enforceable unless it features "shall."
M. Asprey. "Shall" is a modal auxiliary verb. 1 Unlike
T h i s overuse of "shall" plays a large
the other auxiliaries ("be," "do," "have"),
I take a position b e t w e e n these two role in d i s t a n c i n g c o n t r a c t prose from
t h e modal auxiliaries (including "shall,"
extremes. 1 recommend t h a t for purposes standard English, thereby making it harder
"will," "must," "can," and "may") supply
of business contracts you use "shall" only to read. But it also helps render drafters
information about the mood of the main
to impose an obligation o n the subject of oblivious to nuances that come into play
verb that follows. "Shall" was originally a
a s e n t e n c e i n other words, to convey in deciding w h o should.be doing what in
full verb (like "eat," "walk," and "play")
the meaning "has a duty to." Eliminating a given provision, and why.
conveying obligation or compulsion, b u t
"shall" entirely has little to recommend it: T h i s can result in disputes. A perennial
now it's used only as an auxiliary, as is t h e
replacing it with "must" would eliminate q u e s t i o n in c o n t r a c t i n t e r p r e t a t i o n is
modal "will," which originally carried the
a u s e f u l d i s t i n c t i o n a l o n g with o n l y w h e t h e r a given provision constitutes a
sense of volition.
negligible risks; lawyers find "must" unduly c o n d i t i o n or an obligation, if a provision
bossy; and "will" is even less promising as B e c a u s e o b l i g a t i o n s and i n t e n t i o n s
uses language associated with obligations
an alternative. concern future conduct, and because
as in "Widgetco shall submit any Dispute
there's n o true future tense in English,
N o t i c e t o A c m e n o later t h a n five
"shall" and "will" also came to be used with
Business Days after delivery of the related
future time.
invoice"-a court would likely hold that it
K e n n e t h A. A d a m s is a consultant and Tire result is drat "shall" and "will" have constitutes an obligation, even if it would
speaker on contract drafting, a lecturer at the each been used to express modal meanings make m o r e sense as a condition.
University of Pennsylvania Law School, and and to mark future time. A rule arose, a t
author of "A Manual of Style for Contract least in England, to distinguish these two
Drafting" (ABA 2004). His Web sice and blog uses: to express future time, use "shall" when Disciplined Use of'Shall'
are at www.adavtsdrafdng.com. This column in the first person and "will" when in the O n e way to address overuse of "shall" is
will be on hiatus in the coming months and will second or third person, and do die reverse to through more disciplined use of the word,
resume in mid-2008. convey modal meanings. This cumbersome i advocate using "shall" only to express an
GC NEW YORK Thursday, October i 8 2001
NEW YORK LAW J O U R N A L
obligation that's imposed o n t h e subject expressing obligations, as a general matter

A Useful Distinction
of a s e n t e n c e in t h e active voice"Doe " s h a l l " c a n be relied on to c o n v e y t h e
shall p u r c h a s e t h e shares f r o m A c m e . " s a m e m e a n i n g as " m u s t , " a n d replacing T h e n e g l i g i b l e b e n e f i t s t h a t would
(But if a c o n t r a c t uses the first or second t h e f o r m e r w i t h t h e l a t t e r would m a k e result are o n l y part of t h e p r o b l e m w i t h
p e r s o n t h a t ' s sometimes t h e case with little d i f f e r e n c e . using "must" instead of "shall" across t h e
letter a g r e e m e n t s y o u c best bet would U s i n g " m u s t " instead of "shall" would b o a r d . A m o r e s i g n i f i c a n t issue is t h a t
be to treat it as analogous to a consumer also p r e c l u d e d r a f t e r s f r o m using "shall" e l i m i n a t i n g "shall" represents a quick fix
c o n t r a c t and n o t use "shall.") to express f u t u r e time. But the benefits of t h a t does n o t h i n g to help drafters ensure
T o t e s t w h e t h e r a g i v e n " s h a l l " is d o i n g so would be modest: Using "shall" t h a t c o n t r a c t obligations are expressed in
appropriate, c h e c k w h e t h e r t h e sentence t h e most effective way.
instead of "will" to express future timeas
would still m a k e sense grammatically if in " T h i s a g r e e m e n t shall a u t o m a t i c a l l y By c o n t r a s t , disciplined use of "shall"
you w e r e t o r e p l a c e " s h a l l " w i t h " h a s terminate when the Acme Contract h a s a role t o play in t h a t regard. As a
[or h a v e ] a d u t y t o . " rule, it's best to impose an
(It d o e s n ' t work in obligation on the subject
all c o n t e x t s i f y o u of t h e sentence, so as to
mistakenly make a m a k e it clear who owes
the obligation"The
c o n d i t i o n sound like It would be best to eliminate 'shall' from statutes and C o m p a n y shall reimburse
a n o b l i g a t i o n by u s i n g
t h e C o n s u l t a n t for all
" s h a l l , " it w o u l d s t i l l consumer contracts. But there's no reason to automatically a u t h o r i z e d e x p e n s e s . "
make s e n s e w h e n tested
But a n obligation c a n be
using " h a s a duty.") apply that approach to business contracts. expressed in o t h e r ways
But G a r n e r , Asprey,
t h a t a t best are wordy
a n d o t h e r legal-writing
and at worst obscure
commentators advocate
w h o owes t h e o b l i g a t i o n . For example,
doing away w i t h "shall" entirely because t e r m i n a t e s " i s inartful, b u t it's unlikely
o n e could use t h e passive v o i c e " T h e
it's too prone to misuse and is inconsistent to result in c o n f u s i o n as to meaning. T h e
C o n s u l t a n t shall be r e i m b u r s e d for all
with g e n e r a l English usage. In Garner's same applies to the use of "shall" to express
authorized expenses." Or one could
words, "few lawyers h a v e t h e semantic f u t u r e time e v e n w h e n t h e simple present
use "is e n t i t l e d t o " " T h e C o n s u l t a n t
acuity to identify correct a n d incorrect t e n s e w o u l d be m o r e a p p r o p r i a t e , as in
shall be entitled to be reimbursed for all
'shalis' even after a few hours of study. T h a t " T h i s a g r e e m e n t shall be g o v e r n e d by
a u t h o r i z e d expenses." O r o n e could use
being so, there can hardly be much hope of N e w York law." F u r t h e r m o r e , depriving
the verb "receive""The Consultant shall
the profession's using shall' consistently." 2 d r a f t e r s of " s h a l l " would be unlikely to
receive r e i m b u r s e m e n t for all authorized
As e x p l a i n e d below, I d o n ' t share m a k e t h e m more restrained about overuse
expenses." In each of t h e three preceding
this view. of f u t u r i t y t h e most likely result would
examples, it's not stated who is required to
be overuse of "will."
reimburse t h e c o n s u l t a n t . Depending on
Negligible Benefits of'Must' T h e risks p o s e d by " s h a l l " c a n be t h e c o n t e x t , t h a t kind of problem could
O n e a l t e r n a t i v e to "shall" as a means o v e r s t a t e d . For e x a m p l e , to give a n lead to a dispuce.
of expressing obligations is "must," which i n d i c a t i o n of t h o s e risks, G a r n e r points
Asprey fovors. Using "must" would be more to t h e m a n y pages d e v o t e d to "shall" in A n y drafter using t h e "has a duty" test
in k e e p i n g w i t h g e n e r a l English usage, West's multivolume "Words and Phrases." 5 to c h e c k w h e t h e r in t h e preceding four
but o n c e you consider t h e implications, But of t h e cases cited, most involve t h e e x a m p l e s "shall" was used to impose an
a b a n d o n i n g " s h a l l " in f a v o r of "must" language of statutes, n o t contracts. obligation o n t h e subject of the sentence
seems c o u n t e r p r o d u c t i v e . T h e o n l y issue r e l a t i n g to overuse of would d e t e r m i n e t h a t t h e latter t h r e e
R e p l a c i n g "shall" w i t h " m u s t " would "shall" t h a t routinely results in c o n t r a c t e x a m p l e s fail t h e test. In e a c h case, the
result in "must" being used to express any disputes is u n c e r t a i n t y regarding w h e t h e r d r a f t e r would be advised to r e s t r u c t u r e
o b l i g a t i o n , w h e t h e r it's imposed on t h e a given provision represents an obligation t h e o b l i g a t i o n so as to make it clear w h o
s u b j e c t of a s e n t e n c e " T h e C o m p a n y or a c o n d i t i o n . B u t r e p Lacing " s h a l l " has t h e obligation.
must r e i m b u r s e t h e C o n s u l t a n t for all w i t h " m u s t " or any o t h e r verb w o u l d n ' t A n d t h e "has a duty" test has a further
authorized expenses"or on someone resolve t h a t problem. Instead, you'd need benefitit would allow drafters to diagnose
e l s e " T h e C l o s i n g m u s t t a k e place at to r e v a m p t h e provision to make it clear i n a p p r o p r i a t e use of "shall" to express
Acme's offices." But in business contracts, t h a t you're expressing a c o n d i t i o n a s in future time.
unlike o t h e r forms of drafting, confusion "In order co dispute any invoice, Wldgetco O n e could a d o p t t h e "has a duty" test
is unlikely to arise over w h e t h e r "shall" must submit any Dispute N o t i c e to A c m e a n d still use either "shall" or "must" for
expresses a n obligation or instead means n o l a t e r t h a n five Business Days a f t e r all obligations. But co make it easier for
" m a y " or " s h o u l d . " So for purposes of delivery of che-related invoice." drafters to distinguish between obligations
G C N E W YORK Thursday, O c t o b e r 18 2007
NEW YORK LAW J O U R N A L
imposed o n t h e subject of t h e s e n t e n c e a n d it w o u l d b e a w k w a r d to use t h e m p r o b l e m t h e muddied and limited

and all o t h e r obligations, it would be best to express an obligation t h a t would only verb-use palette on display in mainstream
to use d i f f e r e n t words to c o n v e y t h o s e arise in t h e future, as in " O n t e r m i n a t i o n contract drafting. O n c e you gain control of
m e a n i n g s . ( A n d d o i n g so would be in of this agreement, A c m e agrees to return your verbs and related issuesfor example,
keeping with a core principle of drafting the Confidential Materials." But t h e most o n c e you're able t o draft a c o n d i t i o n t h a t
d o n ' t use a n y g i v e n w o r d or phrase t o s i g n i f i c a n t p r o b l e m w i t h "agrees t o " is n o o n e would confuse for a n o b l i g a t i o n
convey more than one meaning.) T h e t h a t whereas some drafters use "agrees t o " you will understand better w h a t to say in
p a t h of Least resistance w o u l d be to use to impose a n obligation, o t h e r s use it as a c o n t r a c t a n d how to say it.
"shall" for t h e former a n d "must" for t h e language of p e r f o r m a n c e , w i t h t h e idea B a n i s h i n g "shall" deals with the
latter. Because this d i s t i n c t i o n c o u l d n ' t t h a t " A c m e agrees t o assign its rights to s y m p t o m , n o t t h e disease. By c o n t r a s t ,
reasonably be construed as relating to t h e the P a t e n t " means the same thing as "Acme using "shall" t o mean only "has a duty to"
degree of obligation, it couldn't cause a n y h e r e b y assigns its rights t o t h e P a t e n t . " is i n t e n d e d t o help treat t h e disease.
u n i n t e n d e d mischief. Clearly t h i s could lead to c o n f u s i o n a n d T h o s e w h o would banish "shall" h a v e
litigation. See, for example, IpVenture, Inc. a r g u e d t h a t d i s c i p l i n e d use of "shall" is
Stridency of 'Must' v. Prostar Computer, Inc., 1007 WL 2812677 b e y o n d t h e r e a c h of lawyers. But s u c h
(Fed Cir. Sept. 28, 2007). pessimism isn't warranted. T h e rule
So using "must" to express all obligations underlying disciplined use of "shall"use it
would offer negligible benefits and would Everyday Use of 'Shall' to m e a n only "has a duty to"is certainly
e l i m i n a t e a useful distinction. But s t r a i g h t f o r w a r d e n o u g h . It does require
A n o t h e r o b j e c t i o n t o " s h a l l " is t h a t
widespread adoption of "must" in business a m o d e s t a m o u n t of s e m a n t i c acuity o n
it d o e s n ' c m a k e sense to p e r p e t u a t e it
c o n t r a c t s instead of "shall" faces an e v e n t h e part of drafters, but no m o r e t h a n t h e
in c o n t r a c t s g i v e n t h a t " s h a l l " has all
more fundamental obstaclemany drafters m i n i m u m amount required to competently
but disappeared f r o m general usage.
consider t h a t stating all obligations using a r t i c u l a t e a client's needs.
Rut- n aivpn nnnnintion inrlndincr
1
" m u s t " results in c o n t r a c t s t h a t s o u n d - - o- ' r~r o Besides, it's too early to write corporate
unduly bossy. the corporate barwill develop the lawyers off as being incapable of disciplined
Asprey dismisses that objection as being s y n t a x t h a t fits its r e q u i r e m e n t s . T h o s e use of "shall." Give training a c h a n c e t h e
"based o n taste, n o t logic." But it would requirements would likely differ f r o m n o t i o n t h a t there are alternatives to simply
s e e m u n r e a l i s t i c to e x p e c t d r a f t e r s t o t h e n e e d s of o t h e r p o p u l a t i o n s , w i t h r e g u r g i t a t i n g the inadequate language of
ignore issues of t o n e w h e n deciding h o w a distinctive syntax being the result. contract: models is still a relatively n o v e l
t o express obligations. Business contracts b e t w e e n sophisticated o n e . T h e key to disciplined verb use is
B e c a u s e of t h e bossy t o n e of "must," parties use a language t h a t is stylized a n d e d u c a t i o n , in t h e f o r m of t r a i n i n g a n d
G a r n e r advocates using "will" to express limiteddrafting a contract is comparable rigorous reference materials. T h a t m i g h t
obligations in business c o n t r a c t s . 4 "Will" to writing c o m p u t e r code. It s h o u l d n ' t be s o u n d u n r e a l i s t i c , but I suggest t h a t it's
m i g h t be a more e x p e d i e n t choice d i s c o n c e r t i n g t h a t in this c o n t e x t a word m o r e plausible t h a n t h e n o t i o n t h a t t h e
t h a n " m u s t , " b u t it's u l t i m a t e l y m o r e of otherwise limited utility"shall"has c o r p o r a t e bar would willingly purge its
p r o b l e m a t i c . For o n e t h i n g , in general c o m e to serve a useful f u n c t i o n . c o n t r a c t s of "shall" d e s p i t e t h e limited
English usage "will" expresses future time T h o s e who favor eliminating "shall" b e n e f i t s of d o i n g so a n d t h e m a n i f e s t
r a t h e r t h a n obligations. Furthermore, if from business c o n t r a c t s are in t h e h a b i t s h o r t c o m i n g s of t h e alternatives.
you use "will" to impose a n obligation o n of s u g g e s t i n g t h a t t h e m o r e f o r w a r d -
t h e subject of a s e n t e n c e , you'd also use t h i n k i n g of us h a v e already a b a n d o n e d
it to impose a n obligation, o n s o m e o n e "shall" a n d t h a t it's only a m a t t e r of t i m e
i . T h i s a c c o u n t of che o r i g i n s or " s h a i i " is iargeiy d e r i v e d
o t h e r t h a n t h e s u b j e c t of t h e s e n t e n c e , before t h e rest fol low suit. I h a v e n ' t s e e n f r o m J o s e p h K i m b l e . " T h e M a n y Misuses o f ' S n a i l , ' "
as well as to express f u t u r e time. S u c h any e v i d e n c e of t h a t . S c r i b e s J. Legal W r i t i n g 6 l , 6 1 - 6 4 ( I 9 9 Z ) .
2. Brvnn G a r n e r . A D i c t i o n a r y of M o d e r n Legal U s a g e
multiple meanings are exactly what I concur that it would be best to eliminate 9 4 0 (2d c d . 1 9 9 5 ) . '
currently afflicts use of "shall." So "will" "shall" from statutes and consumer contracts. 3. Id.
4 . Id. a t 9 4 1 .
isn't a plausible a l t e r n a t i v e to "must," let But there's n o reason to automatically apply
a l o n e to t h e d i s t i n c t i o n b e t w e e n "shall" that approach to business c o n t r a c t s t h e y
and "must" that 1 advocate. serve a d i f f e r e n t f u n c t i o n a n d address a
O t h e r alternatives to "must" are "agrees different a u d i e n c e . T h a t ' s why moves to
to" and "undertakes to," but their advantages drop "shall" from court rules, statutes, a n d
are outweighed by their shortcomings. O n consumer contracts have n o bearing o n how
t h e o n e h a n d , they're n o t susceptible to it's used in business-contract usages.
being used to express a n y t h i n g other than
Missing the Bigger Problem R e p r i n t e d wich permission from the O c t o b e r 18, 2007 edi-
a n obligation imposed o n t h e subject of t i o n of t h e G C N E W YORK. 2007 A I M Properties, Inc.
Ali rights reserved. Further duplication ivichouc permission
a s e n t e n c e . O n t h e o t h e r h a n d , they're Due to the focus on "shall," little is p r o h i b i t e d . For information, concacr 212-545-61 II o r visit
p o n d e r o u s , particularly " u n d e r t a k e s to," a t t e n t i o n has b e e n paid t o t h e bigger www.almreprints.com. i70099-10-07-0001
U f l M W V t ( A O t e w ^ t , ^
When Is it Due? A Look at the Phrasing of Time

Frames in Legal English and Spanish
IV l\it tii\lo Ciiirsti
T
iic phrasing of time frames and under the law. "12 months starting on the date of
deadlines in legal lexis is not Naturally, in many legal relation- execution of this Agreement" speci-
always dear. Translation can be ships, there is a dominant party fies a segment in which the starting
problematic when ihe manner in who sets time frames, with liltle.or no point is the execution dale and the
'wliicli.a lime frame is to be computed room for discussion being left to the finishing point is set 12 months there-
is not- understood, which is mainly weaker party (as is the case with the after. The initial point is definite
due lo ihe iftind-boggliiig effect often lawmaker fixing terms of imprison- insofar as the execution date is set
caused by Ihe adverbial adjuncts used ment, or a powerful utility setting forth in (he agreement itself! In con-
10 establish ihe relevant parameters. 'deadlines in its contract of adhesion). trast, a provision reading "Vendor
Considering the .particular weight In all cases, however, (here is a party reserves the right to collect any sums
that'lime-related provisions'carry in "beneficiary" (who benefits front) and due at any time following tertiiinatiori,
legal texts, such as contracts, corpo- i party "obligor" (who is bound by) of this Agreement for any reason"
rate documents, or evert laws, we contains a term of indefinite duration
translators limy find it useful at the ("at any time") starting on a dale
comprehension : >s(age . preceding "...The law does not favor which is also indefinite, since the
translation proper, to try to "picture" date of termination cannot be ascer-
tinte frames in our minds, hither than unpredictability. Along tained in advance (i.e., at Ihe time
render them mechaiiically into the with manner/degree (or when the agreement is ehlered into).
target -Iniiguagc. "This article focuses extent), and location, time
on time frames as they are usually Different Directions
worded in Ijiiglislt texts, with Spanish is one of the four
translations being provided to illus- all-important variables in Forward-looking Terms
trate certain key concepts. Time frames as described above
the distribution of power can be either forward-looking or
Time Frames: Purpose and that is inherent in all acts backward-looking. "Forward-looking"
Different Types under the law..." terms point to the future from a given
Why .should time frames be estab- point of origin. Their purpose is to
lished In (he first place? In the legal establish obligationi lo be fulfilled or
world, die interplay between any two the established time frame. We will requirements to be satisfied by a
given parlies (a corporation and its come back lo these notions of "bene- party. Since the party bound by (he
shareholders, two contracting parties, ficiary" and "obligor" in respect to time frame is not allowed to postpone
the government and Ihe community, time periods when we discuss Ihe performance indefinitely, it is subject
etc.) entails a "balance of forces." direction of lime frames below. to a deadline. It follows that all for-,
Mere, the- parlies normally wish to if represented graphically, time ward-looking terms are necessarily
make it cleat' that rights will be frames would either appear as seg- maximum, it must be noted, however,
acquired, enjoyed, enforced, termi- ments (with both Ihe point of origin that the reverse is not necessarily1
nated, or waived, aiid (hat obligations and the finishing point being speci- true, since not all maximum terms are
will be assumed, performed, dis- fied) or semi-straight lines (with only "forward-looking" as will be dis-
charged, or waived other Chan "at the origin being specified), fii law, the cussed later in this article (see
will," i.e., within parameters thai pro- former are much more frequent than Prohibitions).
vide a sense of order and security to a (he latter, because frames resembling Forward-looking terms can be
relation that would otherwise be semi-straight lines signify indefinite broken down into the following three
chaotic front (he temporal perspec- duration, which is an exceptional fea- notions, stated in chronological
tive. In other words, the law does not ture in legal transactions. order: inception (i.e.. beginning),
favor unpredictability. Along with in addition, (he initial point used duration, and deadline. However,
manner degree (or extent), and loca- as an opening parameter may be def- forward-looking terms focus on the
tion. lime is one of the Tour all- inite or indefinite as to (he date of deadline rather than anything else, so
impnrtant variables in lite distribution occurrence. For example, a descrip- the linguistic expression of the iime
of power that is inhrent in all acts tion of a time period that is worded frame gives prominence to the
The ATA Chroriicle | October 2 0 0 4 29

When is 1 Due? A Look al the Phrasing of Time Frames in Legal English and Spanish
Table 1: English
2.) "AH monthly payments shall he
made no later than ten business
Deadline Duration Inception days subsequent to the first busi-
wilhin {a term / period of) from ness day of each month."
no! more than ninety days. etc. as from
in no event more than of In sentence I." (he initial point
not lo exceed ("receipt of the Plan") appears to be
as of
indefinite as to the dale of occur-
no(() later than after rence, but most probably the lexi con-
at the latest following tains a cross-rererence to another
(a period) not greater than subsequent to provision selling forth the deadline
on or before' for receipt or die plan. In sentence 2.
by the initial point ("first business day")
can be ascertained by merely looking
until / up to (and including /
at a calendar. Possible translations
but'excluding)
into Spanish of die italicized terms in
sentences I and 1 include, hut are noi
Table 2: Spanish limited lo. the following:
Fecha Limite Duracin Comienzo 1.) "... dentin de las dos meses de su
dentro de (un plazo / perodo / de recepcin/denm de los dos meses
posteriores o sn recepcin /dentin
no superior a lapso; el trmino de) desde
de un plaza nn superior o das
no mayor de noventa das, etc. a partir de meses desde su recepcin."
que no podr exceder / superar despus de
que no podr prolongarse ms con posterioridad a 2.) "... dentin de los diez das hbiles
all de (das) siguientes a siguientes al primer da hbil de
antes de transcurridos.(x cada mes / a ms tardar, el dcimo
das, etc.) da hbil cantada a parar del
primer da hbil de cada ates."
a ms tardar
al (da x) When the duration is implied,
el da x o con anterioridad a l / purely temporal markers (on or
o en cualquier momento before by, not later than) are used,
anterior followed by a specific point in time,
hasta (x fecha inclusive) and the indication of the inception
point is optional. For example:
end of the segment. Therefore, the than) or the purely temporal marker 3.)"Requcsls for cancellation of
relevant niarker for the deadline no(l) later than are used. The specifi- membership" shall be sent by
appears in Front position. cation of the inception is inevitable so e-mail or fax an or befare Jtrne. JO."
Tables I and 2 show possible (hat it is clear how (he term is lo be
markers in English and Spanish. computed. For example: 4.)"Business forecasts shall be made
available to Supplier by the fifth
Markers I.) "Licensor will approve the Annual day following the end of each
The forms listed in Tables I and 2 Sales Plan within two months of quarter in each Sales Year."
cannot be freely combined. When receipt thereof."
the duration is made explicit, "quan- !n sentence 3. the inception point
titative" markers (within, not more is not mentioned and becomcs clear
30 The ATA Chronicle ! Gluber 2uu4

only in a given! context, which iiie must not go beyond if. This is why applies. The interpretationsome-
parties aie sufficiently acquainted these time frames are sometimes times attempted by lawyersthat the
with. In sentence '1, the inception worded in (he negative for lite sake of absolute deadline prevails in all cases
point is made explicit, but can only emphasis, with markers like afar or would render the other time frame
be "visualized" Oy looking at the con- later than being used to modify the meaningless, and improperly grant
cept of "Sales Ye;u " as defined in the deadline. For example, "No requests one of the parties an unintended grace
text. Possible translations iiito for cancellation will be accepted after period (the only exception being, as
Spanish of the italicized terms in sen- June 30." staled in the proviso, that no reim-
tences 3 and 4 include: Finally, the use of the term max- bursements will be made on June 30 if
imum is pleonastic in forward- proof is presented that same day).
3.5 "... Iiasta el 30 le jimia inclusive." looking time frames, so no harm is A variant of forward-looking
Spanish phrases in which an article caused if it is not used when writing terms coupled together comes in the
and a preposition, or two or more the original or if it is omitted in the form of options, introduced 'by
prepositions, are coordinated with translation. The time frame in a sen- markers like the earlier/the earliest of
an elided head ("el a antes del 30 tence like "All copies shall be or whichever comes first: Here, two or
de junio") are considered incorrect, returned to Publisher within a max- more deadlines tire established, one
while the normalization of this imum term of twenty days from Iiie of which prevails if it occurs before.
deviant us by providing the head date of cancellation of the order" may For example:
and adding a deictic term with an be reworded to read "tvithin twenty
anaphoric reference ("el 30 de days" without changing the meaning. 5.)"Licensing fees shall be paid to
jimio a antes de dicha fecha") may ZZZ, Inc. the earlier of: (i) not
Sound awkward or unnatural. Absolute Deadlines and Options more than seven days following
Sometimes, two maximum terms the date on which Distributor
4.) "... dentro tie. los cinco das poste- are coupled together, with the second receives payment For the Products;
riores a la finalizacin de cada term introducing an "absolute" dead- or (ii) within sixty days from the
trimestre en cadtl Atia de Ventas." line. For example, "Expenses dale when the Sublicensee accepts
incurred by Agent shall be reim- the Products."
Most sentences containing a max- bursed by Principal within ten days
imum term can be rephrased by using following submission of receipts, but In Spanish, there is no equivalent
the pattern "The deadline far ... is / in no event after the thirtieth day of of "the earlier o f ' that is as concise as
expires ...Intralinguistic paraphrase, each month, provided, however, that this phrase in the example above, so
together with the use of transpositions no same-day payments will be made." either of the following two transla-
and modulation as lianslatioli proce- K is interesting to note (hat as long as tion procedures may come in handy:
dures. may be useful to provide a the agent complies with its duty to a) compensation by splitting, which
Spanish translation that honors account for the expenses incurred, would result in the Spanish phrase
economy of phrase without detracting one deadline may take priority over "dentin del plaza cpte primero se
from meaning or clarity Thus, the rel- the other one, depending upon the cumpla entre las dos siguientes"', or
evant portion of sentence 3 above may time of submission of the receipts. If b) modulation, which elilails a
be, translated as "El plazo para el the agent submits proof of the change in point of view: "Las
envo ... vence el 30 de junio." expenses on, say, June 15, the prin- regalias par licencias se abottardn a
Forward-looking terms being cipal must reimburse him for them on ZZZ Inc.: (i) dentro de los siete dids
maximum, the pa It y bound by'them or before June 25or become a posteriores a..., a bien (ii) dentro de
may perform the obligation at any defaulting party on June 26, because los sesento dt'as desde la feclia en
time within the "segment" between the 10-day period applies. If proof is que..., sc este pltizo se atmple
the inception point, if specif ed, and presented on June 24, the principal primero." An objection may be made
the deadline, but not later, [n other must fulfill his reimbursement Obli- that undue prominence is given to
words, (he obligor need not wait until gation by June 30, so he has only six one of the two periods so neutrally
the expiration of the term and may days within which to perform, set forth in the source text, but this is
"use" the whole of this segment, but because the absolute deadline a minor objection if we feel that
The ATA Chroriicle | October 2004 31

When is II Due? A Look al the Phrasing of Time Frames in Legal English and Spanish
(he target text flows more naturally hidden in sentence 7: first, the fact that deadline" for giving notice is the thir-
and, most importantly, meaning is the period is to be computed back- tieth day counted back wards from (lie
neither added nor lost. wards ("advance"); and second, die intended dale of termination.
fact that the period is minimum ("at A frequent translaiion error con-
Backward-looking Terms least"). Since these terms benefit sists of translating these terms by
These lime frames point to the past the purchaser (who may be "dam- using markers that mistake the
from a given paint in the future, with aged" by the changes to the price list) "reverse deadline" for a future dead-
Ihe inception beirig set al some future and franchisee (who may not wish the line proper. Thus, an erroneous
dale which may be certoin or uncertain agreement to be terminated), they are Spanish translation for sentence 7
al the time the text is created. These necessarily minimum. As such, and in would read "...mediante notificacin
terms can be classified into two distinct contradistinction to forward-looking escrita cursada al FranquiGiado a los
groups: a) terms as requirements for terms, they represent timelines fliat the treinta das," ni which the period is
notices to lie given; and b) terms during notifying party must not step onor it mistakenly understood to run for-
which prohibitions ore imposed or will be breaching its duty tnc give wards (presumably, from the dale
rights may not be exercised. proper advance notice. when the impossibility of remitting
As to the inception, it is uncertain in dollars arises) rather than backwards
Notices both cases above, for the context (from the intended date of termina-'
Group A ( which practically shows that the price increases in sen- tion). And we would be making a
monopolizes the use of backward- tence 6 or the termination upon impos- comprehension mistake if we under-
looking terms, is comprised of time sibility of remittance of foreign stood the omission of phrases like "al
frames fried for the benefit of a parly currency specified in sentence 7 are least" to mean that notice may be
(the recipient of the notice) that will contingent events. Therefore, the effec- given only on the thirtieth day pre-
subsequently suffer (broadly tive date for the price changes or the ceding termination. Such an assump-
speaking) some kind of damage, loss, termination date cannot be ascertained tion would be illogical from a legal
or deprivation. These frames. corre- in advance, and may never occur at all. point of view, because iiiccpljo"
spond to what is known as preavisos But if the notifying party contemplates dates and due dates arc parameters
in many Spanish-speaking countries. these events happening, then it must marking the beginning and/or the end
They balance the right of one party choose/decide on a future dote of of periods within which to do some-
(the sender) to cause this damage or occurrence and count the notice thing. Thus, correct translations for
loss with Ihe right of the damaged period from that date backwards. sentence 7 include: "...mediante
party (the recipient) to have advance Again, it follows that the use of notificacin escrita cursada a!
riotice of it. Consider these examples: markers, such as at least or not less Franquiciado con una antelacin
than can be dispensed with (and anticipacin (mnima) de treinta
(i.) "Any increase in the prices as set freely omitted or added in Ihe transla- das" or "...con (no menos de) treinta
out in the Price List shall be sub- tion), since these periods are not seg- das de antelacin / anticipacin."
mitted by Seller to Purchaser at ments, but semi-straight lines
least forty days in advance of their pointing backwards from (lie Prohibitions
effective dote." intended origin. Thus, the notifying Group B, discussed earlier, is
party may use any portion of (he comprised of lime frames to be
7.) "in the event that remittance of timeline before the length of the term counted backwards from a given
U.S. dollars to the United Suites is counted backwards, but not on or point, during which a party is for-
not possible under the laws of Ihe after the dale when the retro-compu- bidden or denied the right to do
Territory, Franchisor may termi- tation ends, because the point at something. Unlike litne frames set as
nate this Agreement upon thirty which the computation ends operates requirements for notices, these terms
days' writteu'notice to Franchisee." as a sort of "reverse deadline." In may be minimum, fixed, or maxiinhtn.
other words, in sentence 7, For Therefore, the ose of markers, such
Sentence 6 is much more explicit example, there is nothing to prevent as at least or maximum, does make a
in that it brings to light two features the franchisor from giving 40, 60, or difference. For example:
of backward-looking terms that are more days' notice, but the "reverse
The ATA Chronicle | Octoher Z004

8.)"if the Register of Members is managers may fix the closure date at is that the provision states a prohibi-
dosed in onler lo determine those any time within these 10 days (die tion, which is actually the obligation
Members thai are entitled to attend term is maximum). to refrain from doing something. If
ami vole at a meeting or Members, compared to the obligations estab-
sudi Register shall be so closed far Markers lished under forward-looking terms,
nt least 10 days immediately pre- Table 3 below shows the usual rel- this sentence provides something like
ceding such meeting." evant markers for backward-looking the negative of a picture, in tiiat the
terms in English and Spanish. obligor may not use any portion of the
The purpose of this kind of provi- 60-day segment, but is free lo act
sion is to establish a rtcord dale that Appearances Can Be Deceptive after the deadline. A legal action may
operates as the "reverse deadline" There are provisions in which two validly be brought only from day 61
mentioned above, on or after which parameters appear to "fight" for onwards. Clearly, the question can
registration is impossible because the the role of the point of origin, so it only be solved by choosing one of
register is elosed. In (his case, any is not clear whether the term is two points of view. From the
(new) members of a limited liability forward-looking or backward-looking. obligor's standpoint, the time frame
company tire denied the right to enter Consider this example: is minimum, as are all waiting
their names in the register for a period periods. But this is so with respect to
that the managers may fix at their dis- 9.) "No legal action may be brought the obligor's right lo do something,
cretion, except-that ( .shall not be less to recover on this License before which is acquired after at least 60
than 10 days (it is mini,mini). 60 days have elapsed after submis- days have passed, and not with
This lime frame may be estab- sion of a claim as required herein." respect to the prohibition imposed
lished as a fixed or definite term, in upon him, which is the linguistic
which ense, the provision would read Where shotdd we start when expression of the provision. Hence,
"...shall be closed...for JO days," and deciding how to compute the term? the time frame is maximum, as are all
imisi be understood lo'mean not one Should we go forward from the date forward-looking terms, with the pro-
day more, not one day less. Or it may when a claim is submitted, or back- hibition ceasing on day 60 within a
read '"...far a period not greater wards from the date when a legal term to be computed from the date of
than 10 days." in which case the action may be brought? The trouble submission of a claim.
I hope this discussion of time
Tahin 3 frames may contribute to a deeper
understanding and a systematic
English Spansh organization of concepts that often lie:
helore antes de hidden behind the innocent-looking
prior to words signifying them.
con anterioridad a
in advance (of) (x das, etc.) previos a
References
tidvance (adj.) con una antelacin / anlicipacin de
Hervey, Sndor; an ITiggins; and
nr,ipaHi,m con (x das, ele.) de antelacin /
Louis M. Haywood. 1995
upon x days', etc. (prior / anticipacin Thinking Spanish Translation.
advance) notice New York: Routledge
al menos
al least por lo menos Larson, Mildred. 1989. La Traduccin
not less than no menos de
Basada en el Significado. Spanish
in no evertl less than
version by Donald H. Burns and
un mnimo de (x das, etc.)
Rodolfo von Moitke. Buenos
nol sooner than (x das, ele.) como mnimo Aires: Eudeba.
minimum (as in "a minimum que no podra ser inferior a
term of...")
The ATA Chroriicle | October 2004 33

01 Introduction To Legal English PDF

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UNIT 1

INTRODUCTION TO LEGAL ENGLISH

In the daily practice o f the law, the most important subject is

1. (1857) 6 HL Cas 61.

x The tools of trade

3 Addressing the Court

O n e thing y o u will not be able t o avoid the nervousness

I Finding the intention

The Distinctive Features of Legal English

1. USE OF DEICTIC WORDS

<- Here and there adverb constructions

Here is used to refer to the instrument itself or a portion of it:

There can be used to refer to:

a) An extrinsic instrument or a portion of it. E.g. Should the

b) An item mentioned in the text, especially where such item

S This warranty shall be in full force and effect until

N.B. "Hereby" and "thereby" express 'manner', 'means', 'instrument' or 'result'

s The aforementioned purchase and sale and the property

f Plus, Inc. acquired a 60% interest in Minus, Inc., thereby

s But: The Board of Directors meets once a month, and all

The preposition attached to "here" or "there" is governed by:

a. a preceding verb: E.g. Performance of this Master

b. a preceding adjective: E.g. These bylaws are governed by

c. a preceding noun: E.g. The abovementioned financial

v Training programs shall be organized by the company, and all expenses

2. DOUBLETS AND TRIPLETS OF LEGAL IDIOM

Set phrases formed for amplification by synonymy or near-synonymy; word

- Null and void

- Supersede and displace /Displace and supersede

3. CIRCUMLOCUTIONS and CLICHS

Circuitous expressions and stereotyped phrases traditionally used for impact

- during such time as (= while)

4. ARCHAISMS, LATINISMS and FOREIGN (TYPICALLY

- John Smith, personally known unto me,...

- Inter alia (= among other things)

- An event of force majeure

5. SET PHRASES I FOSSILIZED FORMS

- Except as otherwise provided herein...

- Including without limitation.../ Including but not limited to...

Use of mostly otiose or superfluous words or phrases, typically justified on

- I do hereby certify that...

Redundant and tautologous forms:

- Most idiomatic legal pairs and triplets (see no. 2 above)

7, MISLEADING ENUMERATIONS and OPPOSITIONS

- Termination or expiration of a contract ("Expiration" of the contractual

Sell or dispose of property ("Selling" is one of several ways in which

> Devices used to signify an exception to a rule or general principle

> Typically introduced by the phrases "provided that", "provided always

> The sentence can generally be easily rephrased using "byt" or

"Whenever the vote of stockholders at a meeting is required in connection

9. FREQUENT USE OF INVERSION OF WORD ORDER

i) Emphatic use of adverbs or adverb phrases. E.g. On no

ii) Omission of "if in conditional clauses. E.g. Should the

10. FREQUENT USE OF THE INFINITIVE IN SUBJUNCTIVE MOOD

In the event that Distributor be prevented from marketing the

11. FREQUENT USE OF PASSIVE VOICE, ESPECIALLY WHERE

12. FREQUENT USE OF REDUCED AND VERBLESS CLAUSES

13. RECURRENT USE OF CERTAIN PREPOSITIONS, the use of

- Upon the grantor's death... (= at the time of his death or immediately

14. FREQUENT USE OF CERTAIN MODAL VERBS

i) May. - In the affirmative: 1) granting or acknowledgment of a right,

ii) Shall: - In the affirmative: obligation, mandatory action.

Shall is also commonly used: