When I first started law school in Aberdeen years ago, I remember the very first case they had us study on case law, was one of the plethora of cases in which the court was called upon to interpret the meaning of the word “or” and whether it was disjunctive or conjunctive. I was fascinated. How could there be case law about what a word means? But there was and there is.
It was not by accident that this case was assigned to us first. The task was to learn how to read case law, but the unspoken subtask of the assignment was to understand that accurate communication is one of the raison d’être of lawyering. Lawyers are communicators. In commercial law, we translate the agreement of the parties into written words. Though these parties often think the agreement can be commenced with a handshake and good intentions, once we place those intentions into a written instrument, the inevitable redlining back and forth begins.
What does this tell us? The parties didn’t actually agree. They just thought they did. This is why what is on the paper matters so very much before legal obligations are created. If they still don’t actually agree, litigation is all too often the result. The best contracts are never litigated. When litigation does take place, the litigators are happy, but the transactional attorney is left with feelings of remorse and a desire to improve their drafting skills.
In cross border agreements, there is the added ‘lost in translation” factor. The modern lingua franca of cross border agreements is English. This means that if one or more parties is not made up of native English speakers, there can be a measure of unfairness in the negotiation and drafting. Whilst fairness may be improved by all parties being nonnative English speakers, the overall goal of accuracy is perhaps not.
For a comical look at how nonnative speakers can wreak havoc with a language, I direct the reader to the unintentionally hilarious book “English As She Is Spoke” which purports to be a conversational guide to English for Portuguese speakers. It was written by a man who, essentially, interpreted English, which he did not speak, through French. One linguist explains more fully in this video, but I must warn the reader that only someone who speaks English at an intermediate level or higher should have contact with the book itself. Otherwise, their understanding of English may be harmed:
For all the trouble that this book caused unsuspecting English learners in Portuguese speaking countries, and all the amusement it gave native English speakers at the height of its popularity, such obvious examples of the “lost in translation” phenomenon are rare. More typical, at least in law, is one small word that an entire commercial deal depends on such as Frigaliament Inporting v. B.N.S. 190 F.Supp. 116 where the word “chicken” was at issue, and White City Shopping Center, LP v. PR Restaurants, LLC N.E.2d, 21 Mass. L. Rptr. 565 (2006) where a a Massachusetts judge decided that burritos are not sandwiches. Note these cases happened even when all parties are native English speakers and the words have meaning generally accepted by the English speaking public.
I am of the opinion that limitations in the English language might have prevented it from becoming the modern lingua franca of commercial cross border transactions were it not for the commercial dominance of the United States after WWII. Afterall, German speakers often regard English as a simplified, if not stripped-down version, of their language. French speakers also complain that sentences in English don’t contain all the information they are accustomed to conveying in French.
Latin is often used for key concepts in English language contracts. The meaning of those words is fixed in time and a contract meant to be renewed and performed over decades may contain English words whose meanings naturally shift in connotation. This can then lead to difficulty in performance as those who implement the contract may not be familiar with legalese. There is not easy answer but the fact is that words matter very much.
Further reading:
- https://ma-litigation.sidley.com/2023/04/delaware-supreme-court-confirms-that-and-is-a-word-of-many-meanings
- https://www.newlawjournal.co.uk/docs/default-source/article_files/011_nlj_7844_specialist_landlord-tenant_james.pdf?sfvrsn=180470ee_3
- https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1088&context=mjrl