This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
Using plain language in your contract documents isn’t as easy as it sounds. While plain language advocates argue for using plain words in legal documents and for interpreting those words based on their ordinary meaning, achieving this objective is complicated by two factors. First, using technical language is sometimes essential to the accurate and succinct expression of complex ideas. Second, there’s no consensus on what we mean by the “ordinary meaning” of a word. As this discussion explains, drafting technical details in plain language may be harder than you think.
Most plain language advocates would agree that removing unnecessary jargon, vague platitudes, and cluttering clichés is a positive step toward improving the quality and precision of your documents. Many would go a step further and say that legal documents should be drafted in plain, precise, and easy-to-understand language. As Mailhot and Carnwath note in Decisions, Decisions, the plain language movement has grown into an irreversible trend within legal circles:
The public is quick to reproach jurists, barristers, professors, judges, and arbitrators for using language that is too technical or even closed and for their failure to use everyday language in pleading or speaking. They are criticized for using jargon known to them alone or to a few initiates.
Thus developed, first in the USA and then elsewhere, movements advocating “plain language”, that is simple or everyday language. Its proponents make themselves heard with considerable force. These movements for readability in English have their supporters and detractors. The trend, however, is irreversible. This does not require the adoption of a falsely simplistic style by the use of vulgarisms or common turns of phrase, but rather the choice of language that is natural, practical and free from over-affected words and phrases. In short, we should write simply, taking great care in the choice of vocabulary.
In fact, the plain language philosophy has significant influence in international legal circles. For example, the European Parliament’s Joint Practical Guide for legislative drafting recognizes plain drafting as its first principle and calls for legislation that is: (i) clear, easy to understand, and unambiguous; (ii) simple, concise, containing no unnecessary elements; and (iii) precise, leaving no uncertainty in the mind of the reader. While no one can reasonably disagree with these objectives, achieving them is not nearly as simple as proclaiming them. There are, unfortunately, complicating factors awaiting us on the path to plain language utopia, particularly when we apply plain writing to the technical areas of our contract documents.
Once you cut your content down to the essential technical terms, you still face a challenge in achieving contractual certainty since your technical terms may have no universally understood meaning. Much may depend on your audience. In fact, the common meaning of a term, as generally understood by a non-expert, is often inconsistent with the more precise meaning of that term as understood by an expert.
For example, in Sullivan and Driedger on the Construction of Statutes, Ruth Sullivan provides two good examples dealing with “fruits and vegetables” under Canada’s Excise Tax Act. In the first case, the court determined that the statute did not apply to the defendant peanut importer since nuts (which, technically speaking, fall within the category of “fruits and vegetables”) did not fall within the common understanding of “fruits and vegetables”. In the second case, the court found that the statute did apply since mushrooms (which, technically speaking, are a type of fungus) were commonly understood to be vegetables. In both of Sullivan’s examples, the outcome would be reversed if the court had applied a technically precise meaning over an “ordinary meaning” interpretation. This illustrates the big risk of plain language interpretations: they may not line up with what you originally intended when you used a technical term in your contract.
Furthermore, there is no consensus on what we even mean by an “ordinary meaning” or on when it should trump the technical meaning. As F.A.R. Bennion notes in Bennion on Statute Law, the “ordinary meaning” of a term can be “impacted by education levels, regions and class variations.” In other words, whose “ordinary meaning” applies? Furthermore, Bennion notes that: (i) a technical term should be given its technical meaning when used within its specialized area, but (ii) a term that has both a technical and ordinary meaning should be interpreted based on the context. This begs the question: what interpretation applies when that context is unclear? It may give you little comfort to know that your next contract interpretation dispute could land you in a courtroom where lawyers may be unable to agree on the meaning of “ordinary meaning”, let alone on whether that meaning should prevail over the technical meaning of your disputed term. Contract drafters should therefore define their technical terms as precisely as possible since, as it turns out, keeping things simple is much harder than it appears.