Basic Law vocabulary

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Law Wo rds 30 essays on legal words & phrases ¿,ir¡ rj Åíd absi j áì? T' Hscl."J\,I ffi m T' .å\ äî g r ftr r RH sr -E;cuur,tii: Ëf' +r:rj propsr Fnrfr t':1 kiijosui"l,: fliírc, ¡üi"ir),ìlìi' i,u,ï iir,,i il' ffi mds m rn r ç fu ;r'q s.; ' iT ' fi)i,, ffilrs, tX8üLITûI"ij, iti:li.:iíi ri lri.i Slitü3Stf'S, fii:td i,i,:, î; ,tri lì,lntroduction those who seek and those who provide performance securities for the of Both commercial obligations ... would save much time and money if in future they...set plain out their bargain in modern English without resorting to ancient forms which \ilere doubtless designed for legal reasons which no longer exist. Trafalgar House Construction (Regions) Ltdv General Surety and Guarantee Co (Unreported, Ltd Court of Appeal, England, 22luly 1994, Saville LJ at p10) These essays are about the language phrases of the law. They explore words and often found in legal documents. Some of the words and phrases covered are gives technical terms to which the law specific meanings. Some of them a¡e used lawyers habit, by out of more as an incantation than for any legal re¿Non. language has The of the law cerûain featr¡res that make it diflerent from everyday English. You cannot replace a technical legal term by another without being aware of the consequences. But one of the most important feaû¡res of language is that it changes over time. It cannot be frozen to reflect one age. Lawyers, in their search for certainty, often ûry to fix a meaning. But the evolution of language resists this. In these essays one constant theme is that the phrases meaning of legal words and changes as language does. As we trace the particular given history of words we see that the meaning them by courts in one era may be very different from the meaning they have today. Because a word has been frequently litigated does not mean that the courts are certain about what it means. In fact it is often the reverse. A word that has a settled meaning is less likely to be the subject of litigation. propose In most essays we have tried to a plain language alternative. Sometimes this is not possible, necessary. or even The suggestions we make are not quite necessarily "right". S/e are happy for people to challenge ol¡r views. These essays give are not designed to easy answers. They are written to challenge lawyers about the language they use. Sy'e would be as concerned if a reader wrcritically adopted one of our suggestions as we are by those who use 'time-honoured' terms out of habit. One of the things some lawyers believe is that the language of the law is more precise than other types of language. It is not. This causes concern to lawyers who live in fea¡ that the documents they produce may have meanings they do not intend. plain One of the criticisms made against language is that by otime-honoured' replacing terms whole areas of the law will be made less certain and may have to be relitigated. Certainly there are some technical words and phrases that must be retained. \Me do not suggest that "Certificate of Title" Lawwords ìf or'oaffidavif'be abandoned for some other term. However, as we sometimes suggest, lawyers should at least explain what they mean if they have to use terms. technical just Plain language is more than words Plain language is a user-driven approach to writing and designing documents. It of legal documents or documents with legal effect. It avoids is used in a range jargon, archaic words, ümecessary technical expressions,. and complex language. But it is not simplistic English. It aims to communicate information and effective way possible while remaining technically in the most effrcient correct. It achieves this by considering the needs of the intended users of the document. just words. Plain language is about more than It is also concerned with they make sense to the reader, and designing documents organising ideas so that to make them easy to use. It involves knowing the function of a document from people who will use it to find out their needs. The plain language talking to the process includes testing to assess ttre efilectiveness of the new document. problems it introduced. Testing also shows up any wittr the document before is phrases So while the words and used in legal documents are important for them eaqier to read, writers must consider all these other factors as well. making Mark Duckworth Director Centre for Plain Legal Language Lawwords 2 lä=ÉThe Centre for Plain Legal Language The Centre for Plain Legal part Language is of the Facuþ of Law at the joint University of Sydney. It was set up in 1990 as a project of the Law Foundation ofNew South V/ales and the University of Sydney. The Centre promotes the use of plain language in all legal and adminisüative documents. We also carry out resea¡ch into the use of plain language, and run training courses in applying principles plain the of language. The govemment Centre is a consultant to business, courts, and community organisations. We write a range of legal and administrative documents including major commercial documents, user guides and forms. The Cente is a non-profit organisation. A Management Committee oversees the n¡nning of the Centre. The members of the Committee are: Professor \ileisbrot (Chair) David Dean, Faculty of Law University of Sydney Professor Terry Carney Head of Departnent of Law University of Sydney Mr Dennis Murphy Chief Parliamentary Counsel for QC New Wales South Mr Simon Rice Director Law Foundation of New South Wales Mr Mark Duclnvorth Director Centre for Plain Legal Language The Centre aims to: ¡ plain encourage the use of language by government officers, lawyers, legislators, providers people preparing of financial services, and standard documents r develop training programs in the use plain of language r provide consultancy services in plain the use of language r research the use plain language, publish of and the results of that resea¡ch r prepæe precedent plain and sample documents using language r people co-operate with and institutions in drafring and using documents and forms in plain language. Lawwords 3 J=É Versus Latinum part use many Latin terms. Some have become of everyday English Lawyers per is to use these terms because like de versus and cent.It legitimate facto, most readers. they are understood by terms like habeus corpus, inter alía or However, non-lawyers rarely wrderstand are more likely to be baffled than impressed by these terms.r ab initio. Clients you szå suo periculo whenat You block communication unnecessarily if use risk" has the s¿tme meaning. Garner compæes this to a his or her own instead of mathematician who tries to appear more learned by saying 386/1544 114.2 Why lawyers use Latin? do shorthand. Some Latin Lawyers use Latin terms because they are a convenient judicial given or statutory meanings and have become "terms terms have been precise Some lawyers argue that Latin is more than English. Blackstone of art". said that: for eternal duration, and easy to Latin" \¡/as a technical language calculated "Law present best suited be apprehended both in and future times; and on those accounts perpetual to preserve those memorials which are intended for rules of action.3 habit. Latin shows how the language Lawyers also use Latin out of Their use of has remained static, while the English language has moved on. The of the law Anglo-Suons brought Læin words with them.a Latin was used in invading perhaps the reign Canute.5 After ttre Norman English law as early as of King the main language of English law.6 Latin was the Conques Latin became Europe.T language of the church and scholarship throughout medieval uriversal tongues.s Engtish and French were considered to be unfit, "vulgar" What is wrong with Latin? Hudson writes that: in our legal system is primarily designed to give mystery the survival of Latin tags proceedings, and majesty to otherwise ordinary mort¿ls and their fallible as is the case with wigs and robes.e justifiable people Using Latin was when most literate r¡nderstood it. However, govemments recognised for a long English have that this has not been the case tried (ursuccessfully) to force all proceedings in common law time. Edward III parliament passed courts to be conducted in Cromwell's an act in and cor¡rt proceedings into English. This was 1650 to convert all statutes repealed in ln1731 the English Parliament forbade the use of Latin or Lawwords ìà+French in legal documents because it thought that and great "many mischiefs do frequently happen to the subjects of this proceedings kingdom from the in courts ofjustice being in an unknown language".r2 The lawyers revolted. Lord Raymond warned that if the traditional language of the law were abandoned, precision all would be lost.r3 If he had his wây, lawyers would still be writing ever¡hing in Latin. Unfortunately, Parliament o'technical partly gave in to the lawyers demands and excepted words in the s¿tme language as hath been commonly used"from the requirement that they be in English.ta Blackstone believed that this exception "almost defeated every purpose beneficial of the former statute".rs With respect, Blackstone \il¿ts \ilrong to say that Latin is of 'oeternal duration". Like all languages, Latin is mutable. The churchmen fitted the terms ofNorman feudalism into a Latin mould and "Law Latin" was born. "Law Latin" is not pwe Latin. It has been called "barbarous"l6 "com¡pt"l7'omutilated"l8 "dog Latino'or the Irish "bog Latirf'.re However, it is only one variety of non- Classical Latin amongst Late Latin, Medieval Latin (or Middle Latin), Low Latin, Vulgar Latin and Modern Latin.2o "Law Latin" is not precise because words are added changed or dropped. For example, in the early 1800's res gestae ("things done") statements were ones that could be used as evidence because they formed part of a disputed transaction, despite the hearsay rule. Lawyers then began to use res gestae carelessly to label any statements ttrat they thought should be used as evidence the despite a hearsay objection.2r V/igmore phrase gestae' said, 'res has long been not only entirely useless, positively but even harmful. It is harmful, because by its ambiguþ it invites the confi,¡sion of one rule with another and thus creates uncertainty as to the limitations both".22 of Some Latin words have wandered even finttrer from their original meanings. oþowet'' Posse meant "to be able" in Classical Latin. ln Medieval English it meant ooforce". or In modern English, the word group refers to a of local men who help a sheriffmaintain the law.23 Similarly, baro meant "blockhead" in Classical ootenant Latin but by the time of the Norman Conquest, it meant a in chief'.2a o'not" Latin is not always logical. The prefix ¡n means in most, but not all, cases. Modern English words based on Latin ones demonstrate this conñ¡sion. "Incorporeal" means "without a body". However, when a company is given "incorporated" it is a body. Lawwords ìàtÊ Plain Language You should avoid using Latin. It is an obstacle to effective communication and justiff is often imprecise. Occasionally, you can using it when writing to other generally, lawyers, but as Michèle Asprey said Latin for yorn "save clients who are Ancient Romans".25 Endnotes I R Wydick Plain Englíshfor Lawyers 2nd ed CarolinaAcademic p53 hess, Durham 1985 2 BA Garner A Dictionary of Modern Legal Usage Oxford Universþ hess, New York p329 1987 (ed) 3 Jones 3 Blackstone Commentaries 321,1916 4 p39 D Mellinkoff The Language of the LavLittle Brown & Co, Boston 1963 5 see note 4 Mellinkoff p72 6 see nore 4 Mellinkoff p7l rWoodbne 7 GE The Language ofEnglßh Lau, 18 Speculum p395 1943 8 PVD Shelley English and French in England: 1066-1100 Universþ of Pennsylvania p90 Press, Philadelphia l92l N Hudson Modern 9 Australian Usage Oxford Universþ Press, Melbourne 1993 p226 l0 36 Edward III, I c15 Stat I I S Robinson Drafiing Buttenrorths, pl0 Sydney 1973 12 Records ín English 1731,4 Geo II c 26 p133 13 see note 4 Melinkoff 14 Courts inllales andChester 1733,6 Geo II c 14 15 see note 3 Blackstone 324 16 Oxþrd Englßh Dictionary under /aw Clarendon Press, Oxford 1969 17 HC Black Black's Law Dictionary 6th ed 1990 West Publishing Co, Minnesota p886 l8 JA Ballentine Lmtt Dictionary with Pronunciations 2nd ed NY Lawyers Co-operative Publishing Company, New York 1948 19 E ParFidge Slang: Today and Yesterdqy 3rd ed Routlege, London plSS 1950 Webster's 20 New International Díctionary of the English Language: Unabridged2nd ed G&C Meniam Company, Springfield tnder 196l Latin 2l see note I Wydick p54 rWigmore 22 J Evídence Chadbourne rev ed 1976paral767 p255 23 JH Ba;rter and C Johnson Medianl Latin Word-List Oxford Universþ Press, London 1934 note 4 Melinkoff p7l 24 see 25 M Asprey Sove Latinfor your clients who are Ancient Romans Cente for Plain Legal Language, Sydney 1992 Lawwords 6 ìà+The French connection Legal language peppered is with French terms and words derived from French. It is best to avoid them, if possible, because they are difficult for most readers to understand. French terms a¡e entrenched in legal language because of history, not because they precise are more than their English equivalents. History After the Norman conquest, English and French coexisted.r The marriage of Henry II to Eleanor of Aquitaine in 1236 helped inüoduce more French words into the English language.2 A language, called "Anglo-Norman" evolved that was distinct from the dominant Parisian French of the continent. This was the language of the aristocracy r¡ntil the mid 13th Century,3 although bilingualism was common.a Anglo-Norman died out by the end of the l5th century, except in the law.s The English language evolved, but legal language fossilised a form of Anglo-Nonnan called "Law French". Year books which contained case reports and legal commentary \ryere all in Law French from 1260 to 1535.6 Law French was spoken in courto and competed with Latin as the written language the of statutes.T judges Law French was used because most c¿rme from the Norman aristocracy. It was perpetuated because only the noble and wealthy could afford to have their sons trained as lawyers, and fluency in French was a mark of nobilþ.8 professions guilds generally Medieval and masked their practices in mystery to exclude the rlrinitiated. Lawyers did this by using a foreign language.e What is wrong with us¡ng French? Many words of French origin have part become of English. For example, court, judge, payment, possession, maniage, and property were all originally Law French, have but been subsumed by Other Law French remain terms incomprehensible to most people likevoir dire, pur que seisin, autre vie, and cestui trust. Some Law French words also have English which ordinary meanings readers can confuse with their legal meanings, like action, alien, and Law French is responsible for many tautologies. For example "goods" (EnglisÐ (French); and chattels "sell" (English) and (Frencþ; (English assígn "break" ) (French).¡2 and enter These tautologies arose as lawyers translated documents from French to English. Lawyers added English words with the s¿rme meanings as the French if they wanted to preserve French words or help the reader Lawwords ì& Today, this confuses readers who assume that two words understand them. would not be used if one would suffice.r3 pure Law French is not always precise or immutable. Law French was never Meanings change. French. Blackstone branded it as a "barbarous dialect".la generally, possession before it acquired its technical Seisin originally meant In Law French land law Readers have to choose between meanings. yrai díre, speak the ûr¡th". Voir dire is almost voir dire is a comrption of "to modem means "to see spealço'.t0 meaningless in - Plain language French from legal language have been made since the Attempts to eradicate all pleadings were to be spoken unsuccessful Statute of Pleadings specified that (although written in Latin), except for'oancient terms and formso'.r? in English rewrote ttre Books of Law and all Process and In 1650 the Rorurdheads this was repealed in Courts of Justice into Unforhmately, Pleadings II, and the reports returned to French. with the Restoration of Charles to quote English statutes and legal documents verbatim. This French reports had highlighted the absrudity of using both languages. lVithin two decades of the rryere being published in Restoration, some reports, dictiona¡ies, and treatises statutory compulsion to do English without any that all law reports be in English, but technical words In1704 statute required (or grâce) when excepted.2o Law French was dealt its death blow coup de were it was outlawed altogether in 1731.2t 'We you wherever possible. If recommend that avoid using Law Frenchterms yorn you sr:re to explain their meanings to clients. Even the must use them, be oobenefìciary" thancestui que Anglo Norman derived is more comprehensible words with special meanings that may be confused with the trust.22 Avoid meaning. Don't use tautologies that arise because of historical everyday precise. accident. Aim to be Endnotes Language of the Law Little Brown & Co, Boston 1963 p95 1 D Mellinkoff The 2 see note I Mellinkoff p99 p95 3 see note I Mellinkoff p96 4 see note I Mellinkoff p96 5 see note 1 Mellinkoff p98 6 see note I Mellinkoff p99 7 see nore 1 Mellinkoff pl0l note I Mellinkoff 8 see plOl see note I Mellinkoff 9 LawWordspl09 l0 see note I Mellinkoff pl3 ll B Garner The Elements of Legal Style Oxford Universþ Press, New York 1991 t2 Robinson S Draftíng- iß application to coweyancing and commercial documents Butten¡vorths, 1973 pll Sydney l3 see note 12 Robinson p39 l4 HC Black Black's Law Dictionary 6thed West Publishing Co, St Paul Minnesota 1990 p885 see "Law French" l5 see note I Mellinkoffpl0T pl06 16 see note I Mellinkoff 17 36 Edward Stat I cl5 18 see note I I Garner plO 19 see note I Mellinkoffpl3l 20 see note I Mellinkoffpl30 2l Mellinkoffpl34 see note I 22 see note I I Garner pl85 LawWordsAid and abet phrase Doublets often occur in the language of the law. The aid and abet is one known.t Aid and abet are the verbs most often used to define of the best secondary participation in crime. Brett and Waller write that: and abetting is apt to cover any part the expression aidíng conduct on the of the principal in the second degree which encourages or renders more likely the commission of the crime by the principal in the first degree.2 Origin and use The word derives from Old French aider and Latin adjutare meaning to "aid" from help or assist.3 "Abet" comes originally Old French abeter meaning "to lure on, entice"oa andbouter meaning encourage or set on"'S and the "to Suon bedan and beteren"to stir up or excite an animal".6 The phrase aid and abet is often linked with "cor¡nsel and procure". These four as verbs are found together as early a statute of 1547. However, over the centuries other words have been used to define secondary participation in crime such as "help', "assisf', and "comma¡rd".7 In England, section 8 of the Act 1861uses the phrase'oaids, abets, Accessories and Abettors counsels or procures".s This Act declared the cornmon law on the subject.e lt also simplified procedure by stating that an aider and criminal abettor could be charged and generally punished as a principal offender. Ausüalian legislation copied this wording.lo However the Criminal Code does not use the word Queensland abet'.ll phrase or procure" no'w The "aid, abet, counsel, appears in non-criminal statutes (Cth).r2 such as in section 75 Trade Practices Act 1974 Yet the meaning given business to aid and abet in the language of and commerce has not changed, involve criminal though the context may not actions.r3 What do the words mean? meaning phrase Judicial consideration of the of the has focused on: r word "active steps taken ... by or action"ra r presence planning at the time of or commission of the offence,r5 and r issues of knowledge and intention.r6 Judges have spent considerable time working out what the for¡r words mean. general "Aid" has rarely been considered on its own, but is seen to have the help assist. has meaning of or "Abet" an overlapping meaning of 'oto assist or 10 Lawwords ìà+encourage as an accomplice in the commission of an offence".r? The distinction between aid and abet and "counsel and procure" is whether the defendant was present participating, but not or absent. "Any act which would amount to aíding and abetting if present done while at the crime would amount to 'counselling procuring' and if done while absent."rs Lord Widgery hied to find adifference between the words "dd, abet, counsel or ooif procure" on the basis that there were no such differences, then Parliament would be wasting time in using for¡r words where two or three would do".re But Lord v/idgery's approach misunderstands the language of the law. Common legal phrases often contain words that are synonyms or have overlapping meanings. In the Australian High Court, Gibbs CJ took this view and decided that phrase the had to be considered as a whole.20 In the same case, Mason J commented that phrase since the was declaratory "merely of the common lad' it was more important to consider the "common law concept of secondary participation" than the "ordinary meaning of the words themselves".2r Alternatives In 1861 the Accessories & Abettors Act ftoz.e a term that had altered over the centtrries. The 1992 Australian "Model Criminal Code" keeps the formula from l86l because, it says, "despite some difficulties, the meaning of the words is well r¡nderstood".22 But the history of the phrase shows thatwhile the lawbehind phrase the is urderstood by lawyers, the words themselves are not and have not always meant the same thing. An authoritative view is that actual words "the used are of no significance once it is clear that they intended to incorporate are the common law doctrine of secondary participation."23 It is also clear that omitting the word abet does not make the Code any less effective. Queensland While aid and abet remains in statutes, it must be used. Several alternatives have been suggested and may replace soon it. The Committee chaired by Sir Harry Gibbs into Commonwealth Criminal Law called the phrase "archaic"2a o'there and stated that appears general to be agreement as to the need to modemise the language".2s That Committee recommended a formula using the words 'oknowingly involved in the commission of an offence". The Law Commission for England and Wales recommended replacing the phrase old by "assist or encourage or procure".26It is therefore disappointing the that in 1992 committee drafting an Australian Criminal Code kept the archaic term. Lawwords 11 l Endnote pl2l 1 D Mellinkoff The language of the Lm,Little Brown &Co, Boston 1963 rWilliams p536 2 Brett, Walker & Crimínal Law 7th ed Buttenryorths, Sydney 1993 pl94 3 Axþrd English Dictionary Clarendon, Oxford 1970 vol I 4 ed p4 Collins English Dictionary 3rd Harper Collins, Sydney l99l Illhitelqt's Lav, Dictionary ed 5 ER Hardy Ivamy Mozløy & lOth Butterworths, Sydney 1988 p2 6 Jowitt's Dictíonary of Englísh Law2nd ed Sweet & Maxwell, London 1977 vol T p7 (ed) 7 JC Smith abet, counsel or procure" in Glazebrook Reshaping the Criminal Løw: "aid, Essays in honour of Glarwille llilliams Stevens & Sons, London 1978 120 at 123 prosecution 8 Accessories and Abettors Act l86l s8 aimed to reform the of "accessories and abettors of indictable offences".Tlte Criminal Lav Act 1967 which abolished the phrase distinction between felony and misdemeanour, retained the the drafter of the 1861 legislation (CS Greaves) said so; see note 5 Hardy Ivamy p125 9 l0 see pt9 Crimes Act 1900 (NSW) and s5 Crimes Act lgl4GtA 1l s7 Críminal Code Act 1899 (Qld). The word apperirs in para(c) and "aids" "counsels or procures" in para(d) procured" 12 the use of abetted, counselled or was considered in Yorlre v Lucas "aided, (1983) 68 FLR 268 atT72,wherc the TPC said that "in order to be held to have aided or pts IV V the Act it must proven that person abetted a contravention or of be the of accused was aware or should have been aw¿¡re of the facts that give rise to the contravention. Proof of intent is not required. The key penaþ provisions relate to practices provisions breaches of the restrictive trade of the Act and are mirrored in the the s61 various Fair Trading Acts of states eg of the NSW Act. See also s2338(1xd) Customs Act 13 Yorlcev Lucas (1985) 158 CLR 661 14 Rv Coney 1882 5l LJMC 66 at78, Hawkins J (no l5 Fergusonv Weaving I All ER 412 at4l3; and Attorney-General's Reference I 951 (ed) of 1975) All ER 684 at 686; JB Saunders Ifords and Phrases legally defined Í197512 Butterworths, 1988 at p64 3rd ed London 16 National Coal Boardv Gamble 3 All ER 203 at207; Attornøy-General v Able U9581 TWLR 3 845 lt983l 17 The CCH Macquarie Concise Dictíonary of Modern Law CCH, Sydney 1988 pl l8 see note 7 SmithplzT (no I (1975) p686 19 Attornqt-General',s Reþence of 1975) 2 An ER 684 (198a-85) 156 CLR 473 p480 20 Gíogianni v R 2l seenote20p492 22 Criminal Law Officers Committee of the Standing Committee Attorneys-General of Model Criminal Code Chapter 2: General Principles of Críminal Responsibílity Final Report December 1992 AGPS, Canbena 1993 clause 402p86-7 jurist note is based prlssage 23 see 7 Smithpl25 this on a by the lSth Century Foster - 24 Criminal Law3rd Interim Raúew of Commonwealth Report on Principles of Criminal Matters AGPS, Canbena para p200 Responsíbilþ and Other July 1990 16.13 p2l3 25 see note 24 Review para 16.53 lWales (Law 26 Law Commission for England and Comm no 177) 1989 Criminal Law: A Crimínal Codefor England and Wales HMSO, London 1989 vol I clause 27(1) 12 Lawwords ìà+Deemed Deemed is an Old English word judgment".r that originally meant'þronounced judge A is still known as a "deemster" in the Isle of Man.2 We tend to see this archaic word in legislation, but lawyers have extended its use to many areas of legal drafting. The meaning of "deemed" As Windeyer J said in Hunter Douglas Australia Pty Ltd v Perma Blínds: judge to deem means. simply to or reach a conclusion about something ... The words deem and deemed ... thus simply state the effect or meaning which some matter or thing has the way in which it is to adjudged.3 be - Yet lawyers use deemedto mean diflerent things in different contexts.a Indeed one coÍrmentator believes that drafting "few expressions are more overworked".5 Legal fiction In legal drafting, deemed is commonly used to create a legal or statutory fiction.ó It is used to extend the meaning of a word or concept to include a subject not otherwise within its judge normal or ordinary meaning.T As one described it: generally speaking, when you talk of a thing being deemedto be something, you do not mean that it is that which itis deemedto be. It is rather an admission that it is not what it is deemed to be, and that, notrvithst¿nding it is not that particular thing, nevertheless ... it is to be deemedto be that thing.8 Legal commentators ægue that deemedis conectly used only when creating a legal or statutory fiction.e Even then Thornton recommends caution:"dJeem is useful but it is dangerous. It can lead to ambiguity ... creates 'Deeming' an artificialþ and artificiality should not be resorted to if it can be avoided".lo But, as Windeyer J said: There is no presumption, less still any rule, that wherever the word deemed appears in a stafute it demonstrates a or some "fiction" abnormality ofterminology. Sometimes it does. Often it does not. Much depends upon the context in which the word appears.rr presumpt¡on Legal Lawyers also use deemed to create a legal or presumption statutory of "the existence of a fact irrespective of that fact in realþ'.r2 Yet courts the have decided that whether a fiction is or is not created, presumption or the is LawWords 13rebuttable, depends not on the word, but on the context in which conclusive or deemed appears.13 words to use instead include "considered as",ta "regarded âs",ls Other proof that".l7 Or even, within a document, "understood as",l6 or "is suffrcient pÌrrposes document, X is Y". "for the of this prehensive Com definition in definitions to try to remove any lingering doubt Lawyers also use deemed about whether a definition is Often this is too cautious or If a comprehensive definition is needed, a clearer unnecessary. It is also risþ.re or way is to use "means" "includes". Considered to be acfirally mean'Judged to be" or Drafters also use deemedwhenthey just to be" or that it is.20 An example is in the case of Barclays "considered Commissionefi concerning section 55(3) of the Bank Ltd v Inland Revenue 1940 (UK) which states: Finance Act purposes of this section a person shall be deemed to have had control of a For the if ... company at any time Denning LJ said: About this section, used in the technical sense which a lawyer uses when he Deemed is not "deems" used in the sense which an ordinary man uses when he black to be white. It is a spade to be a spade.22 "deems" deemed can simply be omitted. So section 55(3) could be In these situations redrafted: this a person has control of a company at any time if ... section In legal drafting General lawyers' phrases you Using deemed also flows into everyday writing in like "if oowe deem it necessary". This is an unnecessary deviation from deem fit" and o'consider'. clear writing; could be replaced by "think" or Similarly in "deem, shall be deemed to be ... deemed could be replaced 'onothing in this document ", o'means" o'interpreted".23 with or ls necessary? "deemed" cases show that legal drafters use deemedto mean different things in These different contexts. Often these meanings are imprecise. Deemedis not a legal of Victoria says lhat is term of art. The Law Reform Commission deemed recommends that drafters do not use it'oeven in the technical case obsolete, and of expressing a ... legal fiction".2a 14 LawWordsIf drafters must use it, deemed should only be used to create a legal fiction. But they must ask: r are they actually creating alegal fiction? r is the artificiality really necessary or appropriate? Endnotes I D Mellinkoff The Language of the LawLifrle Brown &Co, Boston 1963 p47 2 Hunter Douglas Austalia (1969) Pty Ltdv Perma Blinds 122 CLR49 p65;J Burke Jowitt's Dictionary English of Lau'2nd ed Sweet & Maxwell, London 1977 vol I A-K p577 (1969) 3 r22CLR49p65 (1984) 4 Rv Bilíck & Starke 36 SASR 321p328, King CJ; St Aubynv Attorney-General p53, 15 Lord Radcliffe. See also Note"Deemed- an ovenvorked drafting Í195214C (1977) expresssion?" 5l ALJ 607 5 Note note 4 (1909) 6 Muller v Dalgety & co Ltd 9 CLR 693 p696, Griffith CJ Aubynnote 7 St 3 v (1891) 8 R NorþlkCounty Council 60 LJQB 379 p380, Cave J Thornton 9 GC Legislative Drafiing 3rd ed Butterworths, London 1987 p87. See also lfore note 4 10 Thornton note 8 tl Hunter Douglasnote2 12 Rv Bilíck & Starke note 3 13 Hunter Douglas note 2 and Note note 4 14 Barclays Bank Ltd v Inland Revenue Commissíoner AC 509 p541, Denning LJ fl96l I l5 Note note 4; See also Law Reform Commission of Victoria Plain English and the Laut ReportNo 9, Appendix I Drarting manual; Guídelinesþr plain drafiing in English 1987 ps8 16 Barclays Bank Ltdnote 13 17 Re Pardoo Nominees Pty Ltd (1987) p575, I I ACLR 573 Cosgrove J 18 Re Daly & Director-General of Health (1984) 2 AAR 72; Rv NorþlkCounty Council (l8er) 60 LJQB 379 19 Re Daly note 17. See also "Humpty-Dumpty" definitions in RC DickLegal Drafiing2nd ed Carswell, Toronto 1985 p77 20 Notenote4 2t AC s09 F96ll 22 Barclays BankLtdnote 13 23 Thornton note 8 Victorianote 24 Law Reform Commission of 15 Law Words 15 ætEscrow article considers in its modern Escrow is a medieval legal term which this Do we need it? setting.r What does it mean? Origin which in turn comes from the comes from the Anglo-French escrowe, Escrow parchment.2 a piece of cloth or Other sources a¡e the Old French escro meaning says tløt escrow French escrit and the Latin scriptum.3 Blackstone Norman ooa writing".a means scrowl or scroll meaning Legal means a deed that is made and traditionally, and to most lawyers, Escrow 'odelivered" conditionally.s to be bound, can be express or implied from the or the intention "Delivery", required. There is no and no special words or conduct are no\il circumstances, physically to a third party. An escrow requirement that the deed be delivered party giving it keeps the deed.6 can exist even if the parly the deed is bound and cannot resile from the Although the executing is fulfilled. When inescrow does not operate until the condition deed,? the deed the deed operates retrospectively from the date of its the condition is fulfilled, does not occur, the deed does not come into delivery.8If the condition e It is as if it never existed. operation. that now developed a second meaning, or at least a Garner notes escrow has in in the United States and Britain to mean, "a deposit held diferent emphasis, a trust or as a secr:rity". Although Black's Law Dictionary labels this meaning oþeruersion", used in Australian law.r0 it is now also aspect is emphasised, with escrow as a synonym In its ne\il sense, the delivery party performance with a third as security for of a for depositing something seems to originate the fact that a deed condition. The new meaning from often delivered to a third parly.rr Here, although the "delivered" in escrow is condition is labelled an escrow, if a is not fulfilled, tlre contract contract may be relied on to seek a remedy such as damages. remains in operation and Traditional use such as is traditionally used for deeds. It is often used in conveyancing, Esøow the building completed, or handing handing over a lease conditional on being paid. on the purchase price being over a conveyance conditional Lawwords ìà+In Torrens title conveyancing, dealings a¡e sometimes executed conditionally, but do not take effect as deeds until registered. So to describe an unregistered Torrens title dealing as an escrow is not strictly accurate, though it has become a common practice.r2 Escrow is also used in legislation. The Aboriginal Land Rights (NT) Act 1976 (Cth) uses e,scrow nine times, but does not define it. For example section 10(28) says "a deed of grant that is held in escrow by a Land council". New use In Australia, the new meaning of escrow is appearing in computer agreements about programs. sofhvare The agreement operates immediately, but has a condition that the (used "sot¡rce code" to write program the and understand its logic), is kept by an independent party.t3 third This aims to protect the user of a software program as the third parly only releases the source code if, for example, the supplier is bankrupted or liquidated.ra Escrow also appears in this sense in the Listing Rules of the Australian Stock For example, if a company sells a mining interest or intellectual property in exchange for shares,l6 the company must enter an escrow agreement and deposit the shares with a bank or trustee company for an "escrow periodo' while their value is ascertained.rT Here the term is used to mean "holding on trust". Plain language alternatives The word escrow is not understood people, by most and should be avoided, whether in conveyancing deeds or software progr¿tms. Even among lawyers, the two uses of escrow potentially are confi.rsing. V/e you recommend that use phrases separate for each. For the sense of a conditional deed: 'othis deed only comes into operation when X is done". For the sense of a pñ:ty third holding the deed condition on tn¡st: "Z holds this deed on trust until Y is fulfilled". condition Lawwords ;sÉ Endnotes I Lord Denning MR in AIan Estates Ltdv llG p5l6 Stores LtdU982l I Ch 511 2 The Macquaríe Dictionary2ndrev ed The Macquarie Library, p602 Sydney 1987 3 J Burke Jowitt's Dictíonary of English Lav,2nd ed Sweet & Ma,xwell, London 1977 vol I A-Kp720;for scriptum see also ER Hardy Ivamy Mozley and Whiteløy's Lcvt, Dictíonary p164; l0th ed Buttenrorths, London 1988 RE Latham & British Academy Committee (eds) Revrsed Medieval Latin llord Listfrom Britísh and lrísh Sources Oxford University Press, Oxford 1965p426 üaces suiptumto ll87 and 146l 4 SirrWBlackstone CommentariesontheLawsofEnglandBookll ch20p307 citedinRA Woodman The Lav¡ of Real Property in NSWLaw Book Co, Sydney pl73 1980 vol I p73 5 see "Signed, sealed and delivered" on ofthis book (1866) 6 Xenos v lltickham LR 2 HL 296 at323 Yincentv Premo 7 Enterprises LtdU969l2 All ER 94; and see Monarch Petroleum NLv Citco Australia Petroleum Ltdll986l WAR 310 8 see P Butt Land Law 2nd ed Law Book Co, p486 Sydney 1988 9 Alan Estates v llG Stores Ltd I at 520,524, 528; Ch 5l see also Halsbury's Løtts Í198211 of England 4th ed Buttenryorths, London 1975 vol 12flß\p527 l0 BA Garner A Díctionary of Modern Legal Usage Oxford Universþ Press, York New p222 1987 refening to Black's Law Díctionary 4th ed eg R I I Bird Osborn's Concise Læ+¡ Dictionary 7th ed Sweet & Maxwell, London 1983 pl35 parties ttrird receive the deed or il "writing" escrow - 12 Manton v Parabolic Pty Ltd (1985) 2 NSTWLR p374 (Young 361 I) 13 JIVK Burnside "The frrndamentals of computer technology" p29-30 (ed) in G Hughes Essays on Computer LawLongman Cheshire, Melbourne 1990; see also other essays in Hughes eg P lfuight "Copyright in computer software and data in Australia" p38; protection S Corones "Computer laws affecting softrvare licences" p294 14 A Sharpe introduction to computer contracts" p289-90 "An in Hughes note 13; see also p30; note 13 Burnside and note 13 Corones p294-5 15 s 3T referred to in In Spargos Mining NLv Enterprise MiningNl, (unreported) Gold WA Sup Ct, Murray J Co No 7211990 delivered 6 July 1990 pl4. The ASX Listing Rules are made under s76l Corporations Law 16 see defurition securities" in of "vendor the ASX Listing Rules 17 see Australian Corporation Law: Principles and Practice Buttenvorths, Sydney vol3 pl0l, 1991 385-7 0.1.093s-50-60-65 18 Lawwords ìà+Estate or interest Estate or interesr is often found in conveyancing documents. It is also found in real properly legislationo for example, the caveat provisions of the Real Property Act 1900 (NSW).t Another example is section 51 of that Act: "upon the registration of any transfer, the estate interest or of the transferor ... shall pass to the transferee". However, is the compound structure estate or interestlegally necessary? We just suggest that it is noto and that ínterest alone precise. is as What are "estates"? The doctrine of estates grew out of the concept of tenwe under the feudal system. Tenr¡re was based on the principle that land granted was originally as a feud by the Sovereign to the immediate tenant on the condition certain of services.2 In Australia, the only estates that can be created no\ry are the estate in fee simple and the life estate. In the Interpretation (lrlsw), Act 1987 estate where it appears in any Act or instrument includes charge, "interest, right, title, claim, demand, lien and encumbrance, whether at law or in equity".3 Gan cover "interest" "estate"? Jowitt's Dictionary of Englßh Law says: was used in conveyances etc "interest" to denote every beneficial right in the propery conveyed ... In narrower sense, interest was used as opposed to estate, a and therefore denoted rights in propery not being estates.4 However, Sweet's Díctionary of English Law says, "interest as applied to property is used in a wide sense to include estates (legal and equitable)".s was This also the view of Lord Coke (1552-1634): "interesse ... extendeth to estates, rights and titles, that a man hath of in, to, or out lands".6 of And Sir V/illiam (1723-1780) Blackstone said to that ascertain an estate required an examination of, among other things, the "quantity of interest" a person had the in land. He said: "an estate in lands ... signifies such interest as the tenant hattr therein".T As for a tenant in fee simple, he said: fee "a general, therefore, in signifies an estate of inheritance; being the highest and most extensive interest a man can have in a feud".8 V/e suggest therefore, when refening to properly, interest is not a technical term. It is a word capable of having a wide meaning, and indeed different meanings according to the context or the subject matter.e The word is capable of Lawwords 19 ìà+