Drafting good & clear agreements – No more bulls**t from lawyers!
14 Apr 2016
From the outset of this article, I must warn you that it does contain the use of some “salty” language in the form of one specific word, namely “bullshit”. The word “bullshit” is defined by Wikipedia as “nonsense”, especially in a rebuking response to communication or actions viewed as deceiving, misleading, disingenuous, unfair or false. Unfortunately, many lawyers these days are drafting agreements which are confusing, ambiguous, overly complicated, and full of, well… “bullshit.”
Why the use of the word “bullshit”?
I read an article recently by a scholar by the name of Harry Frankfurt of Princeton University called “On Bullshit”. This “philosophical essay” (as it is described) really struck a chord with me. It describes the differences between “bullshit” and outright lying and over-exaggeration. It says things like
“Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic.”
I thought that was rather insightful actually. He also describes “bullshit” as follows,
“It is just this lack of connection to a concern with truth this indifference to how things really are that I regard as of the essence of bullshit”.
For me the attention grabber was when he asked “Why is there so much bullshit?” Innocent enough. And yet, quite honestly, so true. In this day and age there is so much advertising, so much “hype” out there. Tweeting, hash-tagging, instagramming. The saying “fake it til you make it” often comes to mind. There is so much out there, that it is hard to know what is true, what is factual, what is real. And the question on a lot of our minds actually is, in fact, “Why is there so much bullshit?”
What does this have to do with Law?
Once I had finished reading the article I was suddenly teleported back to my very first class in my undergraduate B.Com Law degree. “Introduction to Legal Studies”. The excitement of starting the first day of “the rest of my life” was palpable. I looked around me and was surrounded by other likeminded individuals, all serious and there in the pursuit of their chosen career. Law. I remember Latin terminology being bludgeoned by my lecturer and her incessant emphasis on the importance of knowing what the terminology meant. The rules that go with the Latin phrases. Things I did not yet understand. I then remember thinking “that seems complicated”. And it was.
Fast forward a couple of years later, two law degrees under my belt, with my own legal consulting practice and I am often confronted with the question “why does it have to be so complicated”. And I had to agree. Who were these Latin terms, phrases and rules meant for? Yes, the people degreed and qualified to practice the law, and that’s all well and good. But what about the people for whom we are practising the law? Do they understand these terminologies often found in commercial agreements – the very agreements drafted in order to assist these people? This seems like a contradiction in terms (or in practice anyway).
I have come across some cases where learned, knowledgeable and respected businessmen were going to court because they did not fully understand what they were signing or they agreed to be bound by something that was not explained to them properly.
And whose fault was that?
Quite honestly it is the fault of the practitioner who drafted the agreement in the first place. Either the wording was so complicated that it was near impossible to understand, or the basics of the agreement were simply not explained in a way that the businessman could grasp fully.
I think it should be the job of the drafter to ensure that it cannot only be easily understood but that it still contains all the necessary legislated terminology to ensure the agreement was valid and binding whilst at the same time being less than 50 pages long. The concept of an agreement, is after all, meant to enable and not to hinder.
Supported by Legislation?
The Consumer Protection Act (CPA) 68 OF 2008 seems to agree with my sentiments. With regards to agreements and the caveat subscriptor rule (“let the buyer beware”), the person signing the agreement is responsible for reading the contract and understanding what it entails before entering into an agreement., The CPA now states at Section 22 of the CPA that “a supplier must ensure that a consumer agreement is in ‘plain and understandable language’ (my emphasis). In Section 50, the CPA states that “an agreement reduced to writing must contain a breakdown of the consumer’s financial obligations”. Essentially, the agreement must be explained in full detail and drafted in a way that is easy to understand. In other words, simple English must be used.
Not only does legislation support the need for simple, easy to understand English but the insurance industry with its long reach into both the private and public sector is in agreement. In an article written by Gareth Stokes, the FAnews Online Editor, entitled “Insurance policy writers have to keep it simple from now on” in 2011 the following is outlined:
“The basics of simple language
The FSA (financial services authority) offers a number of suggestions that financial services companies can use to simplify their contract and policy wording. They recommend that Latin, jargon and lengthy definitions be removed entirely. Documents should be presented in a logical structure with clear headings. Wherever possible, simple question and answer formats and illustrations should be used. As far as style is concerned, Van Zyl said insurers would have to switch from passive to active voice. Instead of saying: “benefits under this policy shall not be payable should a claim for such benefits arise as a result of …” the insurer might simply use: “We do not pay for losses that result from…”
Policies must remain relevant and strip out excess and unnecessary information. It is critical that insurers use everyday language, short active sentences and legible design. “Marketing and legal departments will need to work closely together to ensure that policy wordings comply with the legislation… Policy documents in simple language will hopefully reduce call centre queries and operational costs to the underlying insurer too,” said Van Zyl (Advocate Karen van Zyl, Legal Counsel at RGA South Africa).”
If this can be done and accomplished in the insurance industry, surely it can be done elsewhere?
And again, why bullshit?
And, yet, despite all this emphasis on plain language, we still see “henceforth’s and wherewithals”; endless Latin phrases and complicated legalese. These days “bullshit” in an agreement to bulk up the content should be over and, in their place, we should see correctly phrased and properly drafted agreements. Unfortunately this approach is still pretty uncommon.
Legal practitioners are now faced with the duty of drafting simply worded, easy to understand agreements that get straight to the point, ones that “do not beat around the bush”. And this is often harder to do than simply using words like whereas and hereto. Agreements need to be drafted with the intention to enable, which in my humble opinion, applauds the saying “with the utmost good faith”. And after all, isn’t that the point?
You can Instagram your touched up profile picture. Is it real? Not really. It’s an enhanced version of you. The same should not apply to the agreements you are entering into. Longer, bulked up versions with complicated legalese does not mean better. It just means more bullshit.
(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)