World Commerce & Contracting (WorldCC) research shows that more than 90% of businesspeople find contracts hard or impossible to understand. So how did contract clarity become so impossible in the first place? Specifically, what is legalese, and how did it become entangled – sometimes in block letters -- within English contractual semantics? Lack of contract clarity due to very long clauses could easily lead to loss of profitability and trust among your clients and colleagues! Consider the following example published in a Harvard Business Review article:
"UNDER NO CIRCUMSTANCES SHALL COMPANY HAVE ANY LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OTHER LEGAL THEORY, OR BREACH OF WARRANTY FOR: (I) ANY LOST PROFITS; (II) ANY LOSS OR REPLACEMENT OF DATA FILES LOST OR DAMAGED; (III) CONSEQUENTIAL, SPECIAL, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, THE DELIVERY, USE, SUPPORT, OPERATION, OR FAILURE OF THE SYSTEM; OR (IV) CONSEQUENTIAL, SPECIAL, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THE INACCURACY OR LOSS OF ANY DATA GENERATED BY THE SYSTEM; EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED THAT THE FOREGOING DISCLAIMER UNDER SUB-SECTION (III) ABOVE DOES NOT APPLY TO THE EXTENT SUCH DAMAGES ARE BASED UPON THE USE OF THE SYSTEM AND ARE ARISING OUT OF _______’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE THAT RESULTS IN A BREACH OF SECTION 6 HERETO. ”1
This 142-word clause is one phrase stretching over ten lines and bulging with incomprehensible terms for laypeople – like tort, punitive, consequential, foregoing etc. The same article1 simplified this clause to increase readability of agreement:
“Your and our total compensation obligation under this contract cannot exceed twenty-five percent of the amount FES has billed you in the last twelve months for the applicable service, and neither of us have any compensation, contribution, or other obligation for consequential, punitive, incidental, indirect or exemplary losses (including, but not limited to, profit or revenue loss, capital costs, replacement costs and increased operating costs).” 1
So, why do we write English contracts like this? To find out, we must jump back to the Norman Conquest, in the eleventh century AD, to begin to understand English legal prose. Indeed, Sir Frederick Pollock and Frederic William Maitland explain in their book The History of English Law before the Time of Edward I, Second Edition, Cambridge, 1895: "We can only make the vaguest guesses as to what sort of law would have prevailed in thirteenth or nineteenth century England if Harold had repelled the invader.”2
The term legalese is made up of Latin and English, but what characterizes this legal jargon? Because their histories are so closely intertwined, France and the United Kingdom have several things in common, not least their language and legal system.
After the Norman invasion, the legal vocabulary incorporated many French expressions such as plaintiff. The word plaintiff dates to1278 and comes from the Anglo-French word pleintif meaning to complain. It was first identical to plaintive then came into legal usage with the spelling -iff in the 15th century.
Another example, more striking regarding modern French, is the English term defendant, which traces back to around 1400, and means, in the legal sense of party sued before a court, from the Anglo-French, Old French defendant (modern French défendant). The oldest use in English is as an adjective in the present participle meaning defensive, defending (circa 1300) .
As mentioned above, Latin is also important in legal jargon, because Latin expressions used in current English legalese are written in Latin -- such as bona fide – which implies the item is real, not false (Cambridge Dictionary). Another example of Latin use in modern contracts is the term pro-rata which means calculated according to, or as a share of, the fixed rate for a larger total amount .
We can therefore trace legalese and the use of foreign influences in English legal discourse back to the XI century. This would be slightly reduced by the 1362 Pleading in English Act the Parliament of English put in place after observing that Law French (Lawe Frensch) was used in the law courts of England since the13th century. (Lawe Frensch had been an archaic language based on Old Norman and Anglo-Norman, but became increasingly influenced by Parisian French and later, the English language.)
The 1362 Pleading in English Act stated that “all Pleas which shall be pleaded in [any] Courts whatsoever, before any of his Justices whatsoever, or in his other Places, or before any of His other Ministers whatsoever, or in the Courts and Places of any other Lords whatsoever within the Realm, shall be pleaded, shewed, defended, answered, debated, and judged in the English language, and that they be entered and inrolled in Latin."3
Law French details
Again, Law French (or Lawe Frensch in Middle English) is an edifying example of the impact of the French language on English legal jargon. Its evolution is complex. With its roots in Latin, Law French was in constant contact with the various French dialects on the continent and in England -- as well as with Middle English -- which emerged from the 14th century onwards under the influence of Chaucer and the socio-political reaction against foreign (French) influence during the Hundred Years’ War (1337 – 1453).
To explain the presence of Law French in England during that period, we need to dive further into history. During the 13th century, French had become the lingua franca in both France and England. French was mostly used for education, science, diplomacy, and the language of the English establishment and was therefore spoken by individuals who had access to education (the nobility in general).
The fact that French was spoken by the nobility, means that the proletariat spoke a type of English. This type of English was called Middle English, a term used by historians of the English language to denote an intermediate development stage between Old English (or Anglo‐Saxon) and modern English. In this historical scheme, Middle English is the language spoken and written between about 1100 and about 1500. In this period, English is influenced in many aspects of its vocabulary by a new French‐speaking ruling class, and by a clergy that wrote mainly in Latin.
Middle English grammar and syntax are clearly inherited from the Germanic basis of Old English, although are now shedding inflections and distinctions of gender. Strong differentiation appears among dialects, of which the East Midlands variety proved to be the most important basis of modern English. The period is commonly subdivided into Early Middle English (approximately 1100–1300) and Later Middle English (1300–1500).
Middle English was spoken by the proletariat and was divided into three large groups, divided into subgroups. These groups were:
• Southern (subdivided into Southeastern, or Kentish, and Southwestern), chiefly in the counties south of the River Thames;
• Midland (corresponding roughly to the Mercian dialect area of Old English times) in the area from the Thames to southern South Yorkshire and northern Lancashire; and
• Northern, in the Scottish Lowlands, Northumberland, Cumbria, Durham, northern Lancashire, and most of Yorkshire .
It is also important to note that, during that time, there were no, or few, rules dictating spelling, the alphabet, or grammatical structures. There was, therefore, no harmonization of the English language in a multilingual society.4 (Mellinkoff 1963 : 84).
As we saw earlier, from 1362 the oral pleading of the court now took place in English; however, the case reports were always produced in law French and in the time of Henry VI, Fortescue, the Lord Chief Justice said without knowing the language “wherein so much of our laws yet in force is written, a man cannot pretend to the name of Lawyer.”5 Added to this, parliamentary statutes were no longer written in French or Latin from 1488 and thus written in English. However, it seems that written works, including Year Books were still written in Anglo-Norman. We can therefore assume that Anglo-Norman was used well until the XVII century.
Law French is the quintessential example of variation in language as a sign of belonging to a group of individuals. Its use signals membership of the common law community network. Anglo-Norman was able to spread across the linguistic landscape of medieval England, because the vernacular was unstable and fragmented into a multitude of dialects.
On the other hand, English French remained comprehensible to French speakers on the continent. In the 14th century, the use of Anglo-Norman declined rapidly, and by the 15th century it was no longer a common language, even among the nobility. And yet, its use in the field of law was maintained and intensified to the point where it became an essential reference for the practice of common law.
This detachment from the vernacular led to a specialization and abstraction of terminology. This in turn strengthened the community network, because the idiom excluded anyone not educated in the sciences of law, a side-effect that could not have displeased the elite who possessed legal knowledge. But this confinement to the legal world also isolated the language from all socio-linguistic developments, which ultimately led to its decline. In the meantime, English had been standardized, particularly in Shakespeare's time and later through Johnson's efforts.
The challenges posed by the development of common law in the seventeenth and eighteenth centuries were met by modern English, which was enriched by a vocabulary of Anglo-Norman origin, both in the vernacular and in the language of law.
We can therefore suppose that the specificity of such a language in a specific field leads to the protection of the legal profession, as well as a discrimination against people who, without any legal training, could not understand legalese or legal jargon. In essence, legalese exists today because of the history of the English language and was added to the language to alienate laypeople. This begs the question: could we get rid of legalese? Do we want to?
ABOUT THE AUTHOR
Harry Bevan is WorldCC’s Community Manager, lecturer of English and Contract Management at the University of Grenoble, France as well as a PhD candidate. His research focuses on legal jargon and plain English in business contracts. After a master’s in international trade, Harry joined WorldCC (then IACCM) as a research analyst and then moved on to the role of membership advocacy executive. He is now the manager of WorldCC’s community platform and has been lecturing contract management and business English for four years.
Harry holds both French and British passports and lives in Grenoble, France.
END NOTES
- The Case for Plain-Language Contracts, Shawn Burton, Havard Business Review, January-February 2018, accessed on 25 January 2023,
- The History of English Law before the Time of Edward I, vol. 1
- Wikipedia definition titled, Pleading In English Act 1362
- Mellinkoff, The Language of the Law, Mellinkoff, 1964, Ronald L. Goldfarb
- Cited in The Law Bod Blog, Law French – When Law and Language Collide, by coghlani, May 31, 2018
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