photo by Alaskan Dude on Flickr

Last week in the office we were working on the intellectual property assignment contract. We won’t always be as hands-on with contract development, but for now, this is how we work when we’re the only ones involved in the process (by the way, want to help?): When Martin has a good working draft of a contract ready, he shares it with me and Zak as a Google Doc. We then add our comments and questions, and after further review and discussion eventually the contract is ready for release*.

In the IP Assignment draft, the following gem stopped me in my (admittedly sedentary) tracks:

“In consideration of $10.00 and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:”

I’m not a lawyer. I read the contracts and all the other documents we produce with a focus on questioning whether it will be readily understood by an average person. So here’s the comment I inserted into the draft:

“What on earth does this mean? Where’s the $10 come from? And do we have to call it a “covenant”? Also, does it have to be “good and valuable consideration”? It would be great to avoid any “hereby’s”, too.”

Over lunch on Friday, Martin explained to me where the $10 came from (there needs to be a clear element of “consideration,” which I get to next, and this amount is apparently less arbitrary- and valueless-seeming than $1). He also expounded on the “good and valuable consideration” bit – “consideration” being, in this context, the flow of something of value between parties and not just in one direction.

So for now, I’m appeased. But I’m certainly still thinking about direct, simple, clear ways to say things like this.

Now, “hereby”. I get what this word means (it means that nothing else needs to be done to accomplish the tasks outlined in the contract except to sign it). But I grabbed onto it as unnecessary legalese. I mean, it’s a word that’s in regular colloquial rotation, but not in a very meaningful way. Imagine a child donning a too-big crown and velvet cape, grabbing a broom handle as a scepter, standing on a dining-room chair and announcing, “I hereby declare I will no longer brush my teeth! It is official!”

I don’t think I’ve ever encountered “hereby” in actual conversation.

So what do you think? In the interest of writing our contracts if not in plain language then at least in straightforward language, should we stick with “hereby”? Or should we use a phrase like, “with my signature on this contract” or some such wording?

* All contracts are living documents under constant review and revision, so if you’d like to make a suggestion about the wording or content of a contract, or if you have a question, please leave a comment on the contract page.

When I first moved to Canada from the U.S. several years ago, it was as if I’d stepped into a sort of gentle Twilight Zone: speed-limit signs looked the same but were in kilometres not miles, temperatures were reported in degrees Celsius instead of Fahrenheit, television stations played the same shows but the commercials were less flashy. I adapted quickly, but some of the things I found most confusing were phrases I encountered related to the functioning of government. It took me a while to figure out that when someone in Canada tables a motion, they’re bringing it up for discussion; in the U.S., to table a motion means not to discuss it anymore. Before I figured that out, I found most coverage of Parliament to be downright confounding.

Perhaps this might indicate to some degree the tremendous endeavour LexPublica is undertaking in having a linguistically diverse community participate in the development of common legal contracts. Not only do we have to make it as easy as possible for participants not to feel confused as they collaborate across regional and dialect lines, we have to make it easy for such a community of diverse English speakers to write plain-language contracts that are consistent with all the other contracts we produce and that are easily understood by contract users regardless of their own dialect. And let’s not forget that we want our contracts to be easily translated into other languages.

To address this meaty problem, we’re working to lay the foundation of a style guide that will evolve as LexPublica evolves. In it we’ll specify all manner of conventions: rules of punctuation and grammar, legal-language usage, how to properly insert citations when referring to cases and legislation,  guidance on the structure and layout of contracts. We’re also building what we’re calling the lexicon—a database of terminology encompassing both plain language and formal legal terms. One of the most important functions of the lexicon will be to facilitate the use of consistent terminology across contracts—it will allow us to mark a term or phrase as preferred over any synonyms it may have. We’ll also be keeping track of spelling and usage preferences.

The style guide is itself a fairly massive project; eventually we hope a community of word nerds, grammar fiends, legal linguists, prescriptivists, descriptivists, and average folk will grow up around it just as communities will grow up around contract topics. If you think you’d be interested in helping out with the style guide, speak up and I’ll keep you posted as the project develops.

The spelling of English is a small bugbear for websites with an international focus – especially for those few sites like LexPublica that need to dance on the point at the intersection of correctness, comprehensibility and the law. While spelling isn’t the biggest issue we’re facing, it is still important for us to choose a consistent and well-considered approach.

An early example of the issue is “licence”. In much of the English-speaking world, licensing is accomplished through a licence. The licence is the document, while license is the activity. In the United States, however, license may also refer to the document.

Choosing to use licence or license is a small point, but attention to detail is significant because we’re building a legal commons and precision in language matters in the law. It matters especially because one of LexPublica’s long-term objectives is the standardization of contracts and contract language.

When we hashed out the issue, the major choices seemed to be: laziness, provincialism, simplicity or commonality.

The lazy approach is to let spelling sort itself out in the future, as it becomes an issue. We didn’t think that this would be a particularly good approach to take – we’ll have enough trouble with doing this sort of thing by accident.

Provincialism would let us stick to the Canadian dialect of English and subject others to our uncomfortable compromise between British and US English. This approach might nettle our friends to the south and induce them to waste time fiddling with the spelling in LexPublica documents.

Simplicity would let us choose the simplest version of any given spelling, dialects be damned.

Finally, commonality would dictate that we choose the variant shared across the greatest number of dialects.

Of all the approaches, commonality seems to give us the best result. So long as the meaning is consistent with the shared spelling, then the common spelling has the best chance of having the right meaning to the most people.

It’s been a surprising amount of work to come to the decision to use “licence” as the noun and “license” as the verb.

Like many rules, this rule has an exception: when “license” appears in the name of a specific document, or when quoting from a document, one should leave the use as is. For example:

The Creative Commons Attribution License is the licence used by LexPublica to license its blog content.

Of course, this is the kind of issue for which style manuals are written. We’ll write more about our plans for a community-developed style manual for contract drafting in another post.