Vol. 82, No. 3, March 2009
Most Lawyers Favor updated over archaic language in their letters, briefs, and similar documents because updated language is clearer and more concise. Updated language also is well suited to today’s readers of those documents – clients, other lawyers, and judges. Yet, archaic language that today rarely appears in such documents continues to show up in business contracts, even though these contracts are intended for the very same types of readers. This article describes how drafters can update a contract’s language to eliminate two common types of archaic language: gender-specific language and “legalese.”
According to recent statistics, a growing number of business clients are women.1 Because some clients may find gender-specific language offensive, contract-drafters are wise to use gender-neutral language when possible.
Gender-specific language most frequently occurs when the drafter must choose a pronoun for a singular noun. For example, in a guaranty, where the guarantor is defined as Guarantor, should the drafter use he as a pronoun? Form contracts often use masculine pronouns. In the word-processing age, however, global changes within a document are just a “find and replace” away. So, one solution to sexist language is to use feminine pronouns – she and her instead of he, his, and him – when referring to a female party to the contract.
Of course, that’s an easy fix when a defined term like Guarantor refers to only one person or to several persons, all of whom are female. What if there is more than one Guarantor, and they are not of the same gender? In this situation, the drafter can achieve gender-neutral language by using one of these techniques:
1) Instead of using a pronoun, repeat the noun: “Schedule 3.6 lists all contracts to which a Guarantor is a party or by which
his a Guarantor’s assets are bound.”
2) Delete unnecessary pronouns: “No Guarantor shall transfer any
of his assets....”
3) Use both masculine and feminine pronouns: Use his or her or his, her, or its. While this construction is more cumbersome, some readers may prefer it to the masculine pronoun alone. Alternatively, some drafters recommend including a general provision defining all masculine pronouns as including the feminine, and vice versa. However, this technique simply begs the question: Should the drafter choose the masculine or feminine as the default pronoun throughout the document? Either choice is arguably a sexist one.
4) Revise the noun and pronoun to make both plural: The plural pronoun their is gender-neutral. While this technique works well for most other types of documents, it can create a semantic ambiguity in a contract. For instance, it would not be an advisable revision in the example for technique 1) above: “Schedule A lists all contracts to which a Guarantor is a party or by which his assets are bound” becomes “Schedule A lists all contracts to which Guarantors are a party or by which their assets are bound.” Under the revised provision, does Schedule A list all contracts to which any Guarantor is a party, or only those to which all Guarantors are a party? If the drafter represents the recipient of the guaranty, he or she likely intended the former, because the recipient wants to know about any contract to which a Guarantor is a party. The Guarantors, however, can argue that they need to disclose only a potentially more limited number of contracts, finding support in the principle that courts interpret an ambiguous provision against the drafter.2 Because of this potential ambiguity, the drafter must be careful in using this fourth technique.
Legalese has been defined as “[t]he jargon characteristically used by lawyers, esp[ecially] in legal documents.”3 While some drafters believe that legalese sets an appropriately formal tone, the end-users of a contract – clients and judges who may have to interpret the contract long after the deal has closed – complain that legalese makes the contract more difficult to understand. Below are some examples of legalese commonly found in contracts and some suggested updates.
1) Hereto, herein, and hereof. Drafters often use these words as shorthand for to, in, or of “this Agreement.” These terms often can be deleted, because no reference to the underlying contract is necessary; instead, the reader will understand the reference from its context. Consider the following examples:
- “Borrower has listed on Schedule 3.2 attached hereto all litigation to which it is a party.”
- “Borrower has listed on Schedule 3.2 attached to this Agreement all litigation to which it is a party.”
- “Borrower has listed on Schedule 3.2 all litigation to which it is a party.”
Jill Koch Hayford, Harvard 1985, is associate professor of legal writing at Marquette University Law School, where she teaches contract drafting, legal analysis, writing, and research. She previously practiced banking and bankruptcy law at Reinhart, Boerner, Van Deuren s.c.
In the third example, the reference to Schedule 3.2 is probably not made ambiguous by the deletion of “attached hereto” or “attached to this Agreement.” It is doubtful that a borrower could argue that the provision refers to another Schedule 3.2 attached to some other agreement.
Similarly, drafters usually can eliminate herein, because the reference will be clear to the reader. Herein (and its cousin hereinafter) is used often in definitions, such as in the following example from an indemnification agreement: “[O]n or about [date], an accident occurred, resulting in bodily injuries to ___, a minor, ___ years of age, hereinafter referred to herein as ‘Minor.’”4 The italicized language can be deleted and replaced simply with parentheses: “[O]n or about [date], an accident occurred, resulting in bodily injuries to ___, a minor, ___ years of age (‘Minor’).”
Finally, some drafters use hereof to refer to sections or subsections of a contract: “If Borrower fails to comply with section 4.1 hereof, then Lender has all its remedies under section 8.5 hereof.” Again, the deletion of hereof in both instances probably does not create ambiguity; the references to “of this Agreement” are understood from context. An exception may arise in complex transactions involving multiple contracts, when one contract may refer to sections of another contract. For example, a loan agreement might cross-reference sections of a security agreement or another loan document: “A default under section 4.1 hereof may cause a default under the Security Agreement.” Arguably at least, deleting hereof may cause a contextual ambiguity: Does “section 4.1” refer to the loan agreement or to the security agreement? In this situation, the drafter can add a provision to either the definitional sections or the boilerplate provisions of the primary agreement – in this case the loan agreement – clarifying that “[u]nless otherwise stated, references to sections or subsections are to sections or subsections of this Agreement.” Then, if the drafter wants to refer to section 4.1 of another document, such as a guaranty, the drafter can specifically refer to “section 4.1 of the Guaranty.”
2) Thereof. Update thereof by replacing it with its. As a result, the updated sentence also may be shorter:
- “Buyer shall cause the disbursement of all funds held under the Escrow Agreement in accordance with the terms thereof.”
- “Buyer shall cause the disbursement of all funds held under the Escrow Agreement in accordance with its terms.”
3) Said, such, and same. Drafters easily can update all three words. Replace said and such with the, that, this, or those. Replace same with it or a pronoun. These updates are demonstrated in the following example, adapted from a shareholder agreement5:
“[If] one shareholder desires to withdraw from the corporation, he … shall offer to sell his … share to all the remaining shareholders. … The remaining shareholders [are entitled to participate] equally in the purchase of the
said retiring shareholder’s share by paying for it same equally.”
The drafter also could use a defined term, which would not only aid in clarity but also allow the drafter to eliminate the sexist language. The entire provision is revised below:
one shareholder desires to withdraw from the corporation (the “Retiring Shareholder”), the Retiring Shareholder he … shall offer to sell the Retiring Shareholder’s his share to all the remaining shareholders. … The remaining shareholders [are entitled to participate] equally in the purchase of said the R retiring S shareholder’s share by paying for it same equally. Each shareholder shall signify his or her intention within [number of days] days of the offer to sell, and those desiring to purchase shall [participate] equally in it same. [If] no shareholder desires to buy the share of the Retiring said S shareholder, then the Retiring Shareholder he or she may offer it same to a person other than a shareholder upon the same price and terms, provided, however, that the said purchaser agrees to become a shareholder and execute this Shareholder Agreement, subject … to the provisions of paragraphs (B) and (C) hereinafter set forth.”6
Gender-specific language and legalese are remnants of an outdated drafting style. With some minor tweaking, the drafter can update a business contract’s language to make it as clear and concise as other types of legal documents.