What does it mean? Getting the language right

Have you heard language experts say that English has more words than other languages?

The claim is made but it’s practically impossible to verify.

The Oxford Dictionary says it’s quite probable that English has more words than most comparable world languages. The reason it seems, is historical.

English was originally a Germanic language, related to Dutch and German. English shares much of its grammar and basic vocabulary with those languages.

After the Norman Conquest in 1066, English was hugely influenced by Norman French which became the language of the ruling class for a considerable period, and by Latin, which was the language of scholarship and of the Church.

Very large numbers of French and Latin words entered the language. This melding of languages means English has a much larger vocabulary than either the Germanic languages or the members of the Romance language family according to Oxford.

English builds its vocabulary through a willingness to accept foreign words. And because English became an international language, it has absorbed vocabulary from a large number of other sources.

The richness and complexity of the language we use has its drawbacks as well. The latest round of COVID-19-related restrictions has seen a distinction drawn in some parts of the country between applying restrictions to ‘cafés’ as opposed to ‘restaurants’, leading to the inevitable debate about the difference between the two….

When drafting or agreeing contractual commitments, the words used need to be as clear as possible.

Many actions raised in the courts each year are around trying to resolve what was written down in a contract or which of a possible number of meanings of a word or phrase was the right one.

How does this work?

The starting point for a court will be to look at what the ‘reasonable man’ would conclude the words of the contract meant (that reasonable man having the relevant background knowledge that the parties had at the time of the contract).

The method used will be to allow the words in question to be given their ‘natural and ordinary meaning’ (even if the results are unreasonable) unless the background information and ‘business common sense’ suggests that this should not be the case.

There has been considerable debate over the amount of weight that could and should be given to what ‘business common sense’ means and the various factors to be taken into account when assessing this.

Tips to keep your wording clear

Always consider the following when looking to agree a course of action:

  1. Make sure you identify the parties correctly with the right name (company name not trading name for example), any registered numbers and addresses etc.
  2. Keep it simple and plain – If plain language can be used over ‘jargon’, it should be. Any technical terms should be both defined (a word in a contract which has a specific meaning in the context of that contract) and explained in clear language, even if they are commonly used terms in the industry.
  3. If you are defining terms though, keep them consistent and do not overuse them – this may make a contract more complicated than necessary, and thus open to claims of ambiguity or a lack of understanding when signing the contract.
  4. Make sure you get a sense check on what you write down – we offer high level review services that do just this as well as picking out any key commercial issues, you may then want to review with the other parties to the agreement.
  5. Care should always be taken when general terms and conditions are incorporated into a contract, especially when the same issues are covered in both.

Conclusion

Inconsistency or poor drafting can lead to the court trying to re-interpret a contract in a way that in some cases, neither party wanted and the importance of clear and unambiguous drafting cannot be underestimated.

As a general approach, the court’s seem to be reluctant to find inconsistency but will instead try to interpret clauses alongside each other where possible.

However, for help or guidance on contract construction or analysis, getting early advice is essential, to ensure it is right first time.

Please drop us an e mail or call if you need any further details and stay safe and well.

Roger