English: Tips for Newcomers on Legal Language
Whenever you negotiate the purchase or lease of real estate, or of high-end personal property such as vehicles, or computer components, you are likely to be asked to sign contracts whose language may be difficult to understand. Despite rapid technological change that has accelerated the pace of life, the one field which has continued to resist modernization is legal writing.
Like it or not, Canadian law presumes that adults over the age of 18 are mentally competent to understand the contracts they sign. And this is true whether they sign contracts without reading them, or without a complete understanding of them. The simple fact is that our courts presume that we understand the language of a contract before signing. More importantly, the courts take it for granted that individuals who sign contracts will have had their lawyers review and explain any troublesome provisions before recommending for or against signature.
For example, if you are looking to refinance a mortgage on residential or commercial real estate, one of the documents your lawyer will ask you to sign is an acknowledgment of standard charge terms. The word charge is legalese for mortgage. Standard charge terms is a lender’s pre-printed form, varying anywhere from three or four pages to as many as thirty pages depending upon the bank, that set out all of the borrower’s rights and obligations in addition to repayment of the loan. Many of these bank forms will contain the following provision:
“The Chargor covenants and agrees with the Chargee that he will not make or permit waste to be committed or suffered on the charged premises.”
Someone who is untrained in the law may not know that a chargor is a borrower and a chargee is a lender. In addition, a casual observer might think that this provision refers to storing debris or garbage on the premises. Unfortunately, this is not the case. What this provision means is that the borrower is not permitted to substantially damage the property. Since lenders always appraise the value of property before extending a mortgage loan, they do not want to discover that the value has declined because of intentional damage.
While the language of the law often remains stuck in the nineteenth century, the news is not all bad. Within the last few years, a good number of our judges have begun to hand down their court decisions in ‘plain English’, preferring to use straight forward, non-technical language whenever possible. The use of plain English has had the effect of shortening their decisions making them easier and quicker to read.
One of the by-products of our courts slowly moving to the use of plain English is judicial encouragement for lawyers to express themselves more simply and effectively. As a result of this gradual move to plain English, provincial bar associations and bodies like the Law Society of Upper Canada that license Ontario’s lawyers, are offering courses on effective writing and oral presentation.
Over time it is likely that Canadian law schools will incorporate these changes into their curriculum thereby modernizing and simplifying legal writing. Because the law tends to adapt to change slowly, in time, it will become more accessible to all of us making it less mysterious. In the meantime, if you are confronted with legal documents whose meaning is baffling, consult an experienced lawyer who can review these agreements with you before you make any commitments.
Jack Zwicker is a business and real estate lawyer, negotiator, and lecturer, and practises in Markham, Ontario.