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LEGAL LANGUAGE

AND LEGAL WRITING


(INCLUDING GENERAL ENGLISH)

FOR STUDENTS

G.M. WAGH
R.L. Law College
Belgaum

2002
For Private Circulation Only

Please Write Your Views To:


G.M. Wagh
Lecturer,
R.L. Law College
Tilakwadi
BELGAUM 590006.
TABLE OF CONTENTS

PART ONE LANGUAGE AND THE LAW

Language 1
General Idea of Meaning 4
Definitions 20
Concepts and Conceptualisation 26
Logical Positivism 29
Reality of Universals 32
Obscurities of Meaning 36
Functions of Words 45
Emotive Function of Words 53
Some Selected Writings on Language and Law 58
1. Law 58
2. Importance of language in Law by Ishtiaq Abidi 60
3. Law and Language by Lord Macmillan 62
4. Language: Legal and Literary by John Mason Brown 64
5. The Advocate by Charles P. Curtis 66
6. The Manner of Cross Examination by Francis L. Wellman 69
7. Art in Direct Examination by Francis L. Wellman 71
8. Impeachment of Warren Hastings 73
9. The Seddon Case 76
10. Somavati Case 81
11. Which Bullet Killed Mrs. Knowles? 85

PART TWO LEGAL WRITING

Legal Drafting 93
Nature of Legal Drafting 96
General Drafting Strategy and Attitude 100
Style in Legal Drafting 104
Simplification of Style 117

PART THREE USE OF LANGUAGE

Common Errors 135


Homonyms 139
Modern English Usage 140
Choice of Words 149
Prepositions 158
Phrasal Verbs 160
Some Special Verbs 163
Voice 169
Common Legal Terms 172
Legal Maxims 188
PART FOUR WRITING IN GENERAL

Description and Narration 202


Essay Writing 205
Prcis Writing 208
Letter Writing 215

PART FIVE LEGAL WRITING

Conveyancings 224
Forms of Conveyancing 231
Pleadings 275
Forms of Pleadings 284

PART SIX PRESCRIBED CASES

Prescribed Cases 238

Note: This book covers both Old and New Syllabi of Karnatak University. Following Table
shows the parts to be studied by students appearing for examination under different syllabi.

OLD SYLLABUS NEW SYLLABUS


Part One - Page Nos. 1-57 Part One - Page Nos. 58-89
Part Two - Complete Part Three - Complete
Part Five - Complete Part Four - Complete
Part Five - Complete
Part Six - Complete
PART ONE
LANGUAGE AND THE LAW
LANGUAGE

Language is the chief means of communication. Language is also necessary for us to create our
ideas. We cannot think without language. Therefore language is necessary for us to create and
communicate our ideas. Ideas can be communicated without the use of verbal language. Our body
language or any other sign language may be used to communicate our ideas. But still, majority of
our communication depends upon written or spoken language. When we are speaking to one
another directly, that is, without the use of telephone, radio or any other non-visual distant
communication system, we use verbal and non-verbal languages together. But then we are using
written communication we usually depend upon verbal language only (except when we are
indicating certain things using symbols, graphs, pictures, etc.).

DEFINITION OF LANGUAGE
Many definitions of language have been proposed by linguists and language scholars. Two of
them may be mentioned here as examples.

Language is the expression of ideas by means of speech-sounds combined into words.


Words are combined into sentences, this combination answering to that of ideas into
thoughts.
- Henry Sweet
English Phonetician and Language Scholar

A language is a system of arbitrary vocal symbols by means of which a social group co-
operates.
- Bernard Bloch and George L. Trager
American Linguists

These definitions concentrate on particular aspects of language. As they are given by linguists and
language scholars, they are confined to the linguistic aspect of the language. The first one puts
excessive weight on thought and the second one uses arbitrary in a specialised though
legitimate way. They do not pretend to cover all the aspects of language. It is difficult to give a
complete definition of language. A succinct definition of language makes a number of
presuppositions and begs a number of questions.

FUNCTIONS OF LANGUAGE
We think of language merely as the chief means of communication. But language has more
functions than that. Ogden and Richards classify the functions of language into two categories,
which they call the scientific functions and the emotive functions. Glanville Williams agrees
with this classification, but prefers to call them symbolic functions and non-symbolic
functions, respectively.
Use of words as symbols is well explained by Ogden and Richards. They are not the first ones to
talk about this theory. Locke had already anticipated it much before Ogden and Richards. We can
refer to Ogden and Richards to know the modern theory of the subject.
According to this theory, words, in themselves, are nothing. They are as Saunders put it, no other
than the vibration of the air. Their importance consists in the fact that they are a kind of symbols.
Symbols, in turn, are a kind of signs. Sign is genus, symbol is species and word is sub-species.

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2 LANGUAGE AND THE LAW

Suppose a person sees smoke. He promptly thinks, there is no smoke without fire. Therefore, he
thinks that there must be fire somewhere. Here smoke is the sign of fire. The ability of any
particular person to interpret a sign that comes to his consciousness - i.e., to find meaning in it -
depends on his past experience - in this case, that smoke is a consequence of fire.
Symbols are a special class of signs. There are other signs than symbols. Thus smoke is a sign, but
it is not a symbol. A symbol is a conventional sign. It is a sign that is consciously designed to
stand for something.
Words are a special class of symbols. There are other symbols than words, such as a traffic sign, a
wink, a number. But words are much the most important kinds of signs use in ordinary thinking
and communication.
A word or other symbol is generally used to refer to an object or situation in the real world. It is
convenient to have a technical term for this object or situation, and Ogden and Richards coin the
term referent to indicate it. Words and phrases are the symbols that stimulate mental references
to referents. The referent is that which is signified. The relation between a symbol and its
referent is always indirect: between them there always intervenes the thought of some person. If
there were no minds there would be no symbols and so no words.
There is no doubt that communication is the most important function of language. As a means of
communication, language is used to convey information, ideas and emotions. But language is not
merely a means of communication. Language is also the chief medium of thought. Almost all
thinking, above a very primitive level, is in words. A person congenitally deaf, who of course
cannot think in vocals, can hardly think or reason at all, at least by civilised standards, until he is
taught to speak or read, after which he is able to think in manual or oral gestures or in symbolic
pictures. Exactly how far there can be thought without words, or without symbols of some sort, is
a controversy beyond the scope of the present work.
Study of symbolic functions of language, or study of symbolism, is called semantics. Semantics is
an important prolegomenon to the study of philosophy and of he so-called inexact sciences, such
as psychology and the social sciences. It is found to be of immense use in clarifying disputes
which arise out of the use of words, which are called verbal disputes. In jurisprudence there are
many disputes which are disputes not as to the matters of fact or of value judgements, but purely
as to the use of words. Study of semantics helps to clarify these verbal disputes.
Thus communication and thinking are the two important uses of language. For natural scientists,
such as physicists, chemists, etc., they are the only uses. When a scientist says that the specific
heat of air at constant pressure is 0.2734:, he is simply expressing what he believes to be true. He
would call it a fact. For this, science finds it necessary to device a terminology, i.e., a set of
technical terms which aim at precision, i.e., uniqueness of reference. A scientific statement is, qua
scientific, precise.
Many statements are made, however, not for the sake of conveying information, but in order to
arouse in the listener a certain response, to create an emotion in the mind of the hearer. Anybody
capable of responding to literature will agree that this is an important, as well as a proper, function
of language. Poets use language not mainly to express statements which are true or false, but to
express what is neither true nor false. When Shelly says,
Life, like a dome of many coloured glass,
Stains the white radiance of eternity.
Until death tramples it to fragments,
he is neither talking nonsense, nor making an assertion that must be accepted or rejected as true, or
false. The question of truth or falsity does not arise.
LEGAL LANGUAGE AND LEGAL WRITING 3

Thus, it is clear that a scientist uses language for an entirely different purpose from that of a poet.
The difference between these two uses is not difficult to apprehend, yet they are seldom
distinguished. I.A. Richards suggested the convenient terminology the scientific use of language
and the emotive use of language. When language is simply used to refer to a referent, its use is
scientific. When it is used to arouse an emotional attitude in the hearer, to influence him in any
way other than by giving him information, then its use is emotive.
A word is made of one or more letters. The arrangement of these letters gives the word a meaning.
For example, R, A, and T may be arranged in different combinations to get different words. R-A-T,
T-A-R, A-R-T are three different words. Thus, we can distinguish between two different words not
only from their constituent letters, but also from the order in which these letters are arranged.
Some words like DOG, HORSE, MAN, etc. bring a picture of a dog, horse, man, etc. before our
mind, depending upon our past experiences. If we are told a name of a person, an animal or an
object which we have never seen, we do not get any such picture. To get a picture in this case
sufficient explanation of the appearance and characteristics of that thing is necessary. Thus these
words have more than a mere form. They have a meaning. They are the symbol for those things.
Thus the word D-O-G is a symbol for dog.
But some words do not bring any picture before our mind. Thus A, An, The, Is, Was, etc. are
words which do not represent any person, animal or object. They have only a form. No doubt
these words are quite essential for building sentences, but by themselves they are nothing more
than a form.
Therefore, Margaret Bryant classifies words into two categories:
1. Content Words
2. Form Words
Thus, in the sentence A bird has wings, bird and wing are content words, whereas, a and has are
form words.
A bird has wings is a statement of fact. It conveys some information to the listener. Therefore,
Ogden and Richards call it a scientific statement. Here the words bird and wing both stand for
things for which they are symbols. Therefore, Glanville Williams calls it a symbolic use of
language.
The sentence My thoughts had wings is not a statement of fact. Here the word wing does not
represent a wing, but something else. We cannot say that the sentence is either true or false. In
fact, it is neither true, nor false. Ogden and Richards call this an emotive statement. Here the
word wing is used in a metaphorical sense. It does not stand for the thing for which it is a symbol.
Therefore, Glanville Williams calls it a non-symbolic use of language.
For lawyers language has a special interest because it is a greatest instrument of social control.
Lawyers are perhaps apt to regard law as the sole, or chief means of social control. But, in fact,
law is only a special department of language, and whereas the application of law is limited,
language is all pervasive. From nursery days words like coward, decency, manners,
fairness help to simulate conduct considered socially desirable and to repress conduct
considered undesirable. In later life words like success, honesty, patriotism perform the
same function. Law, with its verbal apparatus rights, duties, wrongs is merely a particular
application of language as a means of social control. Of course, it has special features.
Reed Dickerson wonders how language so full of imperatives can be classed with pure exposition.
Although all definite legal instruments are intended ultimately to influence conduct, they do not
ordinarily serve as their own instruments of persuasion (outside special inducement giving
clauses such as penalty provisions). As an example of an instrument of persuasion, when a
young man writes a young woman to say that he wants to marry her, the latter not only conveys
4 LANGUAGE AND THE LAW

information but seeks to persuade. On the other hand, it is rare that a contract, will, lease or statute
materially relies on the form of the document itself to persuade the parties affected to comply with
its terms. The usual legal instrument is like the warden who merely points out to the new inmate
where the prison barriers are located. Despite its from, it remains almost entirely a source of
information.
But Glanville Williams sees legal rules as emotive statements. According to him, a rule of law is
not a referential statement. It is not meant to be a statement about what has actually happened or
happening in the world, nor is it meant exactly as a prophecy.
Legal rules are value judgements. Just as all ethics consists ultimately of value judgements, so
does all law. Every legal proposition is reducible in the last analysis to the affirmation or denial of
an ought; that is to say, it is reducible either to the statement that there is or duty or no duty
(a hypostasised ought) that A shall do or refrain from doing something. Thus whole law consists
of emotive statements. As with the most other emotive statements there is a referential element,
but not such as to make the statement a proposition of fact.

GENERAL IDEA OF MEANING


The Meaning of Language
Language is, above all, meaning. Meanings are attached to pieces of words, to words, or to groups
of words. Meanings are attached to the spoken signals of language. Meanings are attached to the
shifts and changes of grammar. The sounds of words have no meaning to begin with. People
attach a meaning to them. Word meanings are not fixed for all time in any one language. Semantic
changes take place all along, and at any moment the semantic area covered by a word is
indeterminately bordered and differs from context to context. This is a further aspect and condition
of the inherent and necessary flexibility of language.

Meaning of Meaning
The whole object and purpose of language is to be meaningful. Languages have developed and are
constituted in their present forms in order to meet the needs of communication in all its aspects.
It is because the needs of human communication are so various and so multifarious that the study
of meaning is probably the most difficult and baffling part of the serious study of language.
Philosophers of language find uncertainties in the meaning of word meaning itself. Ogden and
Richards have written a book entitled The Meaning of Meaning which discusses this problem at
length. C. Morris in his article Introduction to the Theory of Science avoided the term because it
fails to take into account distinctions necessary for analysing language and communication.
For our discussion we may consider here two types of language.
1. Metalanguage (Language used to talk about language)
2. Object Language (Language used to talk about matters other than language).
In metalanguage the word meaning or means may relate to the concept of reference, that is, to
what the specific language denotes, or connotes or both. In such a connection, it may relate
1. to what the author intended the communication to refer to
2. to what a particular author believed it referred to, or
3. to what the hypothetical typical member of the audience to which the language was
addressed would believe it referred to.
LEGAL LANGUAGE AND LEGAL WRITING 5

In the object language the word meaning or means may relate


1. to importance or worth (Her father means a lot to her);
2. to evidentiary value (Smoke often means fire)
3. to the portent (This means war!)
4. to wanted explanation (What is the meaning of this correction?)
5. to simple intent (I did not mean to hurt you)
There may be other senses in which the term is used. But they are not relevant here (e.g. When
you feel mean, remember what Dr. Mean said about the golden mean). The term interpretation
has a cluster of meanings that generally correspond.
Though there are several lexicographical difficulties, fortunately they do not cause difficulties of
use. Just because a word can be used in so many senses it does not mean that it is ambiguous. The
context in which such words are used suggests the sense in which they are used. This is the
difference between a bundle of homonyms and ambiguity.
The discussion of the meaning at a statutory provision takes place in the metalanguage, we may
summarily exclude the senses in which the meaning or means is used in the object language. Thus,
we have to discuss mainly the referential senses involving denotation or connotation.
Therefore, in the typical question What does the Statute mean?, the word mean normally relates
to the problem of ascertaining the combined effect of a congeries of connotations.
We must pay more attention to the question From whose point of view the meaning is to be
ascertained? The authors, the particular readers or the typical readers?, rather than What is the
general meaning of the word mean?.
Even these alternatives can be reduced as statutes are not written for any particular reader. They
are for the general audience. Therefore the question is whether the statute is to be interpreted from
the point of view of the Legislator or the general audience to which it is addressed. We cannot
simplify the problem further.
On the other hand, we are interested in the intended meaning of the author in the sense that
without any intention on his part the whole process of communication would be meaningless.
Therefore it is imperative to know his intention but no method exists to know it directly. We have
to rely upon indirect means as the inference drawn from his use of external signs. Communication
by use of external signs is possible only by virtue of established conventions. Therefore the actual
intention of the author may be inferred from those conventions as conditioned by the text.
The convention of language depends upon the cultural patterns of the author and his audience. We
may generally assume that the author has not performed any futile act of trying to communicate to
his audience using signs not known to them. Then the only reliable general key to meaning lies in
the language habits of that audience. Thus we must take the member of the general audience in to
account while interpreting a statute, though like the reasonable man he is also, in a sense, fictional,
he is nonetheless useful.
Once we have established the sense in which the term meaning or means is used in the question
What does the statute mean?, the next question is whether that the term is precise in this single
sense. The answer is again no. We can speak at three types of meanings in this one simple sense.

Proper Meaning
Locke laid it down that the significance of all words is perfectly arbitrary, and that every man has
an inviolable liberty to make words stand for what ideas he pleases. However, few took this
statement seriously, and Ogden and Richardson had to restate it by saying that people have the
6 LANGUAGE AND THE LAW

curious instinctive tendency to believe that a word has its own and proper use. Glanville
Williams agrees and states that words have no true or proper meaning except in two senses:
1. They have an ordinary - commonly accepted - meaning.
Ordinary meaning need not be current among the community as a whole. It may be confined
to a particular section of the community, such as educated persons, business men, scientists
or lawyers.
2. The user of the word may assign to it a special meaning.
The proper meaning of that word for his purpose is then his assigned meaning.
According to Glanville Williams these are the only categories of meaning and all other adjectives
used to describe meaning fall under either of these two categories. Thus actual, correct,
essential, grammatical, legitimate, literal, natural, necessary, rational or
reasonable meanings are not additional categories of meaning.
Similarly historical, etymological, wide, narrow, strict, metaphorical, technical,
scientific and legal are all varieties of ordinary or assigned meaning.
o Historical or etymological meaning is simply the ordinary meaning of the word at some
period of the past. It is unreliable guide to the present meaning of a word because its
meanings change.
o Technical meaning (including scientific or legal meaning) is that meaning which is
current among a class of persons. Legal meaning may also indicate a determination on the
part of the lawyers to read words in a particular way although they know that the user did not
intend them to bear that meaning.
o Strict, narrow and wide refer to the denotation of ambiguous words, again as a matter
of use.
o Proper as contrasted with metaphorical means the original meaning of a word as opposed
to its transferred meaning. The expressions are acceptable provided that it is remembered that
the metaphorical meaning may overshadow or even wholly oust proper meaning and so
become the main or the only meaning. For example, many words for non-empirical facts or
for values began words for empirical facts. It would be pedantic to assert that the proper
meaning of all such words is an empirical one (e.g., that right means straight and wrong
means twisted).
Glanville Williams further asserts that if anybody uses the word proper meaning in any other
sense than ordinary or assigned meaning, it is not scientific but emotive use of the phrase proper
meaning. He is only trying to express what ought to be the ordinary meaning of the word
according to him.
Thus if a lawyer writes, The proper meaning of implied contract is contract implied in fact and
not a quasi contract, he does not express what is now the invariable usage of lawyers, but states
what should be the usage of the term according to him. But by using the word is instead of
ought he dresses up this emotive expression to make it look like a factual expression. Though
everybody at one time or the other uses this technique, Glanville Williams observes that it is fertile
source of controversy, because it provokes others to dispute the suggested proper meaning.
Further, we may sometimes stigmatise a phrase as improper because it seems to indicate that the
species denoted by it belongs to a genus to which the species is not in fact regarded as belonging.
Thus, void contract is not a species of contract. We can call such phrases improper or
misnomers without implying that words have inherently proper meanings.
LEGAL LANGUAGE AND LEGAL WRITING 7

The worst form of error in respect of the use of the term proper meaning is the supposition that
words have not merely proper meanings but single proper meanings. This view suggests that every
ambiguous word has one of its meanings proper while other improper, and the task of science
is to find out which is which. An example can be quoted from Salmonds discussion of
ownership. As Salmond rightly points out, we speak sometimes of owning a thing (e.g.,
building) and sometimes of owning a right (e.g., copyright). To distinguish these uses Salmond
uses the terms corporeal ownership and incorporeal ownership. Salmond feels that it is
logically absurd to say that ownership refers either to the ownership of a right or the ownership of
a thing. It can be either of the two - not both at a time.
Glanville Williams points out that the difficulty arises from the assumption that there is some
single entity in the universe, ownership which cannot be used in two ways. This is an error.
Ownership is a word symbolising an idea. This idea is the meaning of the word, and it may and
does vary with context. Thus there is no absurdity in using the word ownership in two different
ways. Because of this self-made difficulty it seems to suggest that incorporeal ownership is the
original idea and corporeal ownership is the extension of it. But the fact is otherwise.
It is of great importance for a student of jurisprudence to know that words have no inherently
proper meanings. It enables him to write off almost all of the vast and futile controversy
concerning the proper meaning of the word law and other similar terms. In the realm of
constitutional law it helps to rid of the controversies such as whether India is a federal country or
not. This is true for other branches of law also.
In Liversidge vs. Anderson, the question before the court was whether the words If the Secretary
of State has mean the same thing as If the Secretary of State thinks he has. Lord Atkin held that
they did not. In some cases the meanings of two different phrases may be the same. What Lord
Atkin meant was that one phrase did not normally meant the same as the other, and that there was
nothing in the regulation to lead to the conclusion that their meaning was intended to be the same.
The denial that there is no other proper meaning of words than ordinary or assigned meanings is
subject to certain qualifications. It is not denied that generally a writer ought to take meanings as
he finds them. Language can serve as a means of communication only if there is a general measure
of agreement upon the meanings of words. Even when some change in established usage is called
for, it is not desirable to give a word a new meaning so different from its old meaning that its use
may not be agreeable to many. Still less justifiable will be the use of words of precise meaning as
a mere synonyms for other words. For example, the schoolgirls use of the word chronic.

ASPECTS OF MEANING
According to Charles Morris, semiotic, the broad subject of meaning can be divided into three
aspects:
1. Semantic: The relation between words and their referents. Vaguely this refers to the
meaning of the words including their dictionary meaning.
2. Syntactic: The relations among words. This refers to the meanings of phrases and
sentences.
3. Pragmatic: The relation between words and their users or listeners. This is the meaning of
the message or communication.
According to Reed Dickerson there is a fourth aspect - context. He points out that no document
can convey any meaning in isolation. The true meaning of a document can be revealed only by
context. Therefore, it is very much important that the author and the audience must share the
general cultural environment, and within that environment, the same relevant habits, knowledge,
8 LANGUAGE AND THE LAW

values and purposes. A circuit diagram can be interpreted only by a person who knows the
conventions of electrical or electronic engineering. Therefore, an author must take into
consideration this necessary aspect, otherwise he may be misunderstood by the audience.
Further, in the absence of context the literal meaning of a message can point to several
alternatives. For example, if one says, Close the window in a room having several windows, the
audience may not understand which window should be closed. The sentence becomes either over-
general or ambiguous. But if one window is noisy or in any other way causing trouble, or if only
one window is open and others are already closed, then in that context, there will not be any
problem and the meaning of the statement becomes clear. Similarly, context helps us choose
appropriate alternative from a bundle of homonyms. The meaning of the word run is clear in the
sentence He runs the shop.
Without context almost all of our communications would be either ambiguous or over-general. To
avoid this, we would have to include much explanation which would make the communication
intolerably long. Thus, context allows us to avoid many specifications which would be otherwise
necessary.
e.g. suppose that a house wife tells his servant, Get some vegetables from the market and gives
him money. The servant cannot execute this order without interpreting it. The process of
interpretation in this case may be very and very fast. It may be subconsciously done by the
servant. The servant may not even know that he is interpreting the order. Common-sense and good
faith tell the servant that the meaning of the order is:
1. (a) He should go to the market immediately.
(b) He should go to the market after finishing the other works assigned to him.
(c) Everyday if he goes to the market at a usual time, he should go to the market at that
time.
(d) If he is directed to go to the market for some other work, he should get vegetables
when he goes to market for that purpose.
2. The money is given to him for purchasing the vegetables and not as a present to him.
3. He should buy the vegetables from the usual place or the nearest place, and should not go
unnecessarily to a distant place.
4. He should buy only such vegetables as are usually used in the house, and should take into
account the preferences of the members of the family.
5. He should buy the best vegetables available at a fair price.
6. He should bring the vegetables to the house in good faith, without spoiling them or
adding any disagreeable or injurious thing to it.
7. He should deliver the vegetables to the housewife and return the remaining amount to her.
8. He should buy the vegetables on behalf of the family and not for himself.
It is not necessary for the housewife to specify all these things to the servant. If they are told, some
of them may need further explanation and the instructions will become too long. The servant may
be confused and may either bring the vegetables according to his own wisdom, disregarding the
instructions or he may refuse to bring the vegetables saying that he cannot remember all those
instructions.
LEGAL LANGUAGE AND LEGAL WRITING 9

Any statement can be interpreted in the cultural background in which it is made. The culture
consists of the entire fund of knowledge which belongs to the community. It is the common
experience of the speech community.
A speech community is usually defined not by a group of specific people, but by the activities or
fields of interests. Thus, it is also called the relevant language system. There may be:
1. Major Speech Communities: They are identified with radically differing cultures.
2. Secondary Speech Communities, Special Languages and Technical Dialects: These exist
within highly complicated cultures such as our own.
The same person may participate in more than one speech community or be the user of more than
one language. For example, a botanist may call a tomato a fruit while talking with a colleague,
but a vegetable when talking to his wife.
In short, any communication must be interpreted in the external environment in which it is made.
Checking the external contest can tell us what relevant facts can be left out as being already shared
with the audiences to which the statement is addressed. On the other hand, they can be supplied
through a preamble or a statement of factual background. The external environment consists of
two parts:
1. Established patterns of ideas and values immediately underlying a language.
It is the primary meaning of the word. Glanville Williams calls it the Literal Meaning of
the word (Reed Dikersons use of the term Literal Meaning differs from Glanville
Williams use of the term Literal Meaning).
2. The relevant collateral and usually tacit assumptions that are shared and taken into
consideration by the speech community.
It conditions or colours the primary meaning and provides the basis for meanings known as
implications. Glanville Williams calls it the Ulterior Meaning of the word.
Hall calls it the silent language. It is the necessary part of the message. For example, if a
telephone rings at 3 a.m. it implies that it is an emergency call or urgent call, but a similar
ring at 3 p.m. does not carry any such implication.
Wyclif calls it ghostly understandynge. It has given rise to a distinct literary form,
namely, parable or allegory.

Classification of Meanings by Reed Dickerson


Reed Dickerson suggests that meaning of a communication may belong to one of the following
three classes:
1. The Literal Meaning
2. The Actual Meaning
3. The True Meaning
Literal meaning is the meaning carried by the communication, when it is read in its dictionary
sense without any consideration of particular context. Where context does not modify the meaning
of the communication true and literal meanings coincide. But this does not happen often. When
context modifies the meaning, literal meaning is almost always useless.
Actual meaning is the meaning of the communication read in a particular context. The difference
between actual and true meaning is that the former is the meaning revealed in a particular context
10 LANGUAGE AND THE LAW

while the latter is the meaning revealed in the proper context. These two may, therefore, coincide
if the particular context is the proper context. Again this does not always happen.
Unqualified use at the term meaning normally refers to true meaning. It is the total impact that is
made by a communication when it is read in its proper context by a typical member of the
audience to which it is addressed.
By true meaning we do not mean that the language has inherent or natural meaning. Further even
when read in the proper context a communication may not necessarily have a single ascertained
meaning. The communication presupposes the context shared by the author and audience. If this is
not present, the communication fails. It conveys a meaning to the audience which is at v ariance
with the meaning intended by the author. Therefore interpretation of statutes refers to its true
meaning of the statute and not to its actual meaning, much less to its true meaning.
A communication sometimes effectively orients the reader to it's proper context. Then the reader
cannot normally read it out of its proper context. Here actual, literal and true meaning tend to be
the same. Only in such case, the plain meaning rule which equates true and literal meanings make
sense. But the difficulty is again that we cannot definitely tell when such a situation really exits
without knowing the context in which it was written. In case of a statute, this makes us to know
the legislation history.
In case of a statute we have another type of meaning - Legal meaning. It is the meaning declared
by a court with respect to a problem of meaning that is responsible for the judgement. Presumably
legal and true meanings coincide. Otherwise the legal meaning is to be changed so that it does not
coincide. This is done by overruling the previous interpretation.

Classification of Meanings by Glanville Williams


A similar classification of meanings is suggested by Glanville Williams:
1. The Intended Meaning
2. The Ordinary Meaning
3. The Comprehended Meaning
The intended meaning is the meaning intended by the speaker or writer. It is similar to the true
meaning described by Reed Dickerson, because it is in the proper context.
The ordinary meaning is the meaning attached to the communication by an ordinary hearer or
reader. Because the ordinary hearer or reader to whom the communication is not addressed cannot
read it in any context, it is similar to the literal meaning described by Reed Dickerson.
The comprehended meaning is the meaning attached to the communication by a particular hearer
or reader to whom the communication is particularly addressed. This is similar to the particular
meaning described by Reed Dickerson because it is read in a particular context.
When the communication is read in proper context the intended and comprehended meanings
coincide and there is no misunderstanding. Otherwise the intended meaning and comprehended
meaning will differ and there will be misunderstanding.
Glanville Williams makes following 3 observations in respect of meaning:
1. Law rarely addresses itself to the intended meaning. e.g., in law of deceit intended meaning is
taken into consideration because there mens rea is to be proved.
It is also rare to consider ordinary meaning, i.e., meaning which is reasonable. In cases of
mistake, the parties may show that they relied upon the reasonable meaning of the
communication.
LEGAL LANGUAGE AND LEGAL WRITING 11

Though in case of wills, written agreements and other deeds the court is concerned with the
intended meaning, the Courts refuse to go into external evidence for the purpose of
ascertaining the intention of the author. This is the limit set by the law of evidence. But it is
always the duty of the Courts, within this limit set by the law of evidence, to go behind the
dictionary meaning of the words. The Courts realise pretty well the dangers of blind
adherence to the dictionaries. Therefore, Courts do not read the words in isolation, but try to
read them in the context revealed by the document.
2. In some cases Courts are concerned solely with ordinary meaning of the words and refuse to
look into the intention of the author or the understanding of the reader or hearer. Illustrations
occur in the law of defamation.
3. On several occasions the comprehended meaning is very much important in law. The
question whether an offer was made or acceptance was given depends on what the other party
understood by the offer or by the acceptance. However, in such cases there are two matters to
be considered:
(a) what the hearer or reader understood by the communication; and
(b) whether this understanding is reasonable.
Thus, this type of meaning is a compound of ordinary meaning and the comprehended
meaning.
When the Court takes into consideration the ordinary meaning of the words, the Court may
have to choose between several ordinary meanings which may be attributed to the
communication. In some cases it may have to select between the meaning built up from the
words separately and the meaning of the phrase as a whole.
A Good Illustration is supplied by the following two cases decided under the Merchandise
Marks Act, 1887. Under sec. 2(1)(d) of this English Act it is an offence to apply any false
trade description to the goods. Under sec. 2(2) it is an offence to sell goods to which a false
description has been applied. Before a description can be pronounced to be true or false, its
meaning must be ascertained. The meaning depends upon the group of the people whom one
takes as interpreting the words.
Lemy vs. Watson: The Court had to choose between a meaning current among the vendors
and a meaning current among the purchasers. A small fish caught off the coast of Norway
was sold in tins under the description of Norwegian sardines. A French fish by name
pilchard were also sold in England. The young pilchards were called sardines in England. In
Norwegian waters there are no pilchards. The so-called Norwegian sardines were in fact,
brisling. This was known to the sellers, but not to the purchasers. Therefore, it was held that
the description was a false description and hence it was an offence.
Fowler vs. Cripps: The substance sold possessed the qualities indicated by the descriptive
words taken separately, but the description was nevertheless misleading to the ordinary
purchaser. Glaubers salt was sold under the name soda crystals. It was proved that both
Galubers salt and washing soda are salts of soda in crystalline form. But the description
soda crystals was by the usage of the trade of manufacturing chemists applied only to
washing soda. Therefore it was held that an offence had been committed by false
description.
Particularly interesting illustrations of the linguistic difficulty are the cordial cases of the
Second World war. The word cordial originally meant a type of alcoholic drink. But in the
course of time it came to be applied to non-alcoholic drinks containing substantial quantity of
sugar. Sugar worked in place of alcohol to give a similar stimulating effect and the name was
justified. During World War II sugar became scarce and in place of sugar, saccharin came to
12 LANGUAGE AND THE LAW

be used. Now, the question is what is meant by cordial? This question illustrates 3 of the
perennial problems of interpretation.
(a) The difficulty of choosing between essence and accident in definition: It was
open to the vendors of the so-called cordials to admit that a very large proportion of the
drinks sold as cordials before the war did contain sugar, and yet to argue that this fact
was a logical accident, the essence of cordials being that they were sweet. Therefore, a
drink sweetened with saccharin is a cordial.
(b) The difficulty caused by incipient change of meaning: The original meaning of the
word cordial was an alcoholic drink. At the outbreak of the W.W. II a drink containing
a large percentage of sugar was clearly a cordial. Thus, there was a change in the
meaning of the word. Later during the W.W. II in place of sugar saccharin came to be
used. After a long time one could have argued that there is yet another change of
meaning. But before that the suit came to be filed. The difficulty arose from the fact that
the attempt to change the meaning came to be nipped in the bud.
(c) Difficulty of evidence: A judge is entitled to use his own knowledge of meaning of the
word, and also, he is entitled to refer to dictionaries. But, in addition, it is also open to
the parties to give evidence of the meaning of the words. The crux of difficulty is what
kind of evidence can be tendered in such cases? In such cases as the present one, it is the
evidence as to what the hypothetical purchaser who demands cordial expects to
receive? It is not what a particular purchaser expected to receive, because his
expectation may be an unreasonable one, or he might not have realised the full
implications to the ordinary person of the word he was using. But the hypothetical
purchaser is an abstraction who cannot be put in the witness box. Therefore,
scientifically, the proper method will be to conduct a research and find out the meaning.
But this is not a method followed by a law court. The court has to record evidence. In
this case it will have to record evidence of hundreds of people to know the meaning of
the word as understood by hundreds of people. But the courts use a shortcut and record
the expert evidence. Sometimes the evidence of the representative members of the
community may also be recorded. Neither of these persons can be called the ordinary
member of the buying public. Therefore, unfortunately the type of evidence adduced in
such cases frequently fails to provide the right answer.

IMPLICATIONS OF MESSAGE
The implications of a message may be either non-logical (psychological) or logical.

NON-LOGICAL (PSYCHOLOGICAL) IMPLICATIONS


Glanville Williams classifies meaning into literal and ulterior meaning and also into ordinary,
comprehended and intended meaning. The interaction of these classifications can give rise to the
following 6 combinations:
1. Ordinary Literal
2. Ordinary Ulterior
3. Comprehended Literal
4. Comprehended Ulterior
5. Intended Literal
6. Intended Ulterior
When a tactless host looks out of the window and says to his guest, It has stopped raining, the
guest may mistakenly take this to be an oblique hint that he is desired to leave. While the meaning
LEGAL LANGUAGE AND LEGAL WRITING 13

of the words to the host is It has stopped raining 5, for the guest it has two meanings: It has
stopped raining 3 and You may leave now 4. If the host really meant the gust to leave, then
the statement has a fourth meaning 6. If an onlooker can make the same implication, then it has a
fifth meaning 2 otherwise it has only the ordinary literal meaning 1 as far as the onlooker is
concerned.
It may be contended that the so-called ulterior meaning is no meaning at all. It may be said that:
1. For the guest to read the mind of the host, the words It has stopped raining are not necessary.
The same may be read from the non-verbal acts of the host - his body language. This kind of
meaning is not, therefore, confined to symbols.
2. The sentence It has stopped raining does not mean the same thing as You may leave now.
In reply Glanville Williams says that though the contentions are true in a way, they do not affect
the proposition that the intention of the host, i.e., the state of affairs he wanted to bring when he
says It has stopped raining may be the same as when he says, You may leave now. Whether
ulterior meaning may be called meaning at all is only a question of words.

Ulterior Meaning and the Law


In legal matters ulterior meaning figures prominently in the defamatory innuendo and the
construction of documents.
Courts generally enforce consequences logically implied in the language of contracts, wills,
statutes and other legal documents and transactions. The legal doctrine of implied terms goes
much farther than this. Judges are accustomed to read into documents terms that are not logically
implied in them. Academically speaking, these non-logical implications may be classified into 3
kinds:
1. Type 1: of terms that the parties probably had in mind, but did not trouble to express - an
effort to arrive at actual intention.
2. Type 2: of terms that the parties, whether or not they had them actually in mind, would
probably have expressed if the question had been brought to their attention - an effort to arrive
at hypothetical or conditional intention - the intention that the parties would have had if they
had foreseen the difficulty.
3. Type 3: of terms that the parties, whether or not they had them in mind or would have
expressed them had they foreseen the difficulty, are implied by the court because of the court's
view of fairness or policy or in consequence of rules of law - an effort to arrive at a just
conclusion - not concerned with the intention of the parties - terms implied by the court may
be excluded by an expression of positive intention to the contrary.

In respect of non-logical implications, Glanville Williams makes the following remarks:


1. The name non-logical implication is used to indicate that this sort of implication has no
necessary connection with logic. In any particular case a term may be implied both logically
and through non-logical implication.
2. Though theoretically the three classes mentioned above are totally different from each other,
in practice they merge imperceptibly into each other. The distinguishing factor, the probable
intent, is only a matter of degree.
3. Only in the first case the court declares the ulterior meaning of the statement. In other two
cases the court is actually addressing to the meaning of the parties.
14 LANGUAGE AND THE LAW

Non-Logical Implications of Type 1: generally speaking, whenever the Court comes to a


conclusion that:
1. the meaning of the parties has been incompletely expressed, and
2. the unexpressed meaning can be gathered from what has been expressed,
the omitted words will be supplied. These are the circumstances which render it improbable that
the parties meant their words to be complete statement.
But there are few cases where the courts may refuse to make this form of implication. For
example, it may be excluded by a presumption. An important exclusion of it in the law of wills is
in the rule that a will confers no interest by mere implication.
Scal vs. Rawlins: A testator devised his property to his niece during her life, and after her death
(she leaving no child or children) he left the property to his nephews. The niece died leaving
children. It was argued that the intention of the testator was that if the niece had children at the
time of her death, they should have the property otherwise the property would go to nephews. But
the House of Lords refused to add any such term to the will. Since no gift to the children was
expressed in the will, the nephews took the property after the death of the niece.
Non-Logical Implications of Types 2 and 3: Courts frequently import into a document terms that
are not logically implied in it, and that the parties probably did not think about. There are many
examples of such terms:
In Sale of Goods - implied conditions of reasonable fitness and merchantable quality, etc.
In Law of Banking - implied promise by a banker not to disclose the state of his client's account,
etc.
These terms might better be called constructive than implied, because this particular process is
not really an interpretation of pre-existing and expressed intent, but legislation amending or
supplementing to the expressed intent. In any case, this is only a question of nomenclature and it
does not have any practical or legal significance.
Courts normally try to avoid adding terms of these classes to the documents. Implications of class
3 are not added to wills and courts disclaim any jurisdiction to reform wills except where statute
expressly empowers them to. Implications of class 3 are normally added to bilateral or multilateral
private transactions such as contracts. Doctrine of separation of powers prevents the courts from
adding them to statutory provisions.
There are certain rules of construction of wills and statutes which may be called implied (or
constructive) terms. For example, the term children does not include illegitimate children.
Though ordinary lawyers may not like them being called implied terms, there is no difference
between them and the implied terms of types 2 and 3.
In fact, the implied terms of types 2 and 3 are merely rules of law that will apply in the absence of
express terms of the contrary intention. Again it is a matter of terminology whether we like to call
them implied terms or rules of interpretation. Some of them are called rules of interpretation
though they may be excluded by express terms of agreement. Striking example are those of law of
frustration and the duty to disclose in contracts uberrimae fidie.
Law of Frustration: suppose a contract contains a clause referring to arbitration all disputes arising
under the contract, and suppose that a dispute arises over the question whether the contract has
been frustrated. Is that a dispute arising under the contract within the meaning of his arbitration
clause?
LEGAL LANGUAGE AND LEGAL WRITING 15

In Hirji Mulji vs. Cheong Yue S.S. Company, Privy Council held that it was not, but this decision
was doubted by House of Lords in Hayman vs. Darwins. Viscount Simon, L.C. held that the
discharge of contract for frustration rested upon an implied term in the contract and therefore, it is
a dispute arising under the contract. Lord Wright came to the same conclusion on a different
ground. He held that the dispute as to frustration is a dispute arising under the contract, but it is not
because frustration is an implied term under the contract.
Glanville Williams agrees with the view of Lord Wright. He observers that a dispute as the
frustration is a dispute arising under the contract, because it is a dispute concerning the
application of law of frustration to the contractual situation. Theres no need to bring in the
implied term theory, for the following reasons:
1. The rubric implied term is a convenient heading for some comparatively minor rules of law
such as implied conditions and warranties on a contract of sale of goods. But it is not
convenient as a matter of classification to include under it such a large subject as frustration.
2. To speak of discharge of both parties on account of reservation as resting on an implied term
or condition conceal the fact that their discharge is the worldwide different principles of law.
The discharge of the party was that becomes impossible rests on the law impossibility of
performance or undue delay, whereas that of the other party rests on the law failure of
consideration. This difference is apparent from the fact that sometimes one party is discharged
and not the other.
3. The phase implied term has threefold signification. As applied to the law of frustration, it
refers to implication of type 3, but some older dicta make it seem to refer to implication of
type 1, thereby causing doubt and confusion in the law.

Duty to Disclose in Contracts Uberrimae Fidie: In Pickersgill vs. London etc. Insurance
Company, the question arose whether any insurers defence of nondisclosure by the assured was a
defence arising out of contract within sec. 50 (2) of Marine Insurance Act, 1906. Hamilton, J.
held that it was, on the ground that the duty to disclose arose out of an implied condition in the
contract.
Glanville Williams disagrees with the reason though he agrees with the decision. He says that the
defence is one arising out of contract but it is not because it arose out of an implied condition.
Even if it arose out of implied condition, that implied condition is of type 3, i.e., a rule of law. The
proper reason is that it is a defence arising out of the combined effect of the contract and the rules
of law relating to the contract.
In Merchants' and Manufacturers' Insurance Company vs. Hunt, it was argued that the duty to
disclose being an implied term might be suppressed by an express term. Scott, L.J. did not agree
with this argument, though the court did not finally pronounce upon this argument. Glanville
Williams opines that the argument has no bearing upon the conclusion sought to be deduced from
it. Irrespective of whether it is an implied term parties can contract out of it.
Whether they have so contacted out of it is a matter of construction which is not affected by the
terminological question whether or not the law is stated as an implied term.

LOGICAL IMPLICATIONS
If a puzzle is properly worked out from a correct premises we can get proper solution which can
be verified by the facts of experience.
For example, the interior of a box measures 6 x 6 x 6. It is a desired to fit 1 wooden cubes into
this box. A mathematician predicts from these facts that a maximum of 216 cubes fit into this box.
Upon experiment being performed this prediction is invariably found to be correct. The
16 LANGUAGE AND THE LAW

mathematician is not surprised. He asserts that given the accuracy of the premises, there is no
possibility of this prediction going wrong.
The mathematician's prediction, if his reasoning has been accurate, is invariably correct because it
was already contained in the premises from which he started. As long as the premises remain
constant, the conclusion must follow, because the conclusion is merely a restatement, complete or
partial, of the premises. This is not only true for all mathematical deductions but for all logical
deductions in general. Statements of deductive logic are necessarily true for the simple reason that
they are tautologies.
A person may be aware of certain premises and may understand their immediate meaning. But he
may not realise their logical implications that is necessarily contained in them. Thus a man may
know the dimensions of the blocks and dimensions of the cubes, but he may not know how many
cubes fit into the box.
In some cases logical implications yield quite remarkable consequences. Glanville Williams
quotes illustrations from geometry, where the acceptance of few simple axioms involves
acceptance of a complicated logical structure. For example, a circle is defined as being bounded
by line, every point is equidistant from a certain point within the circle. It is not an obvious
consequence of this definition that the length of the circumference bears a constant ratio to the
length of the diameter of 3.1419 to 1. Still this is true. In such cases the consequences follow from
the premises, and cannot be rejected without self-contradiction. The consequences are not
psychologically obvious to an ignorant person from a bare statement of the premises.
The element of psychological surprise in logical implication is capable of presenting some
awkward legal problems, especially in the field of contracts where the courts are accustomed to
reject the defence of unilateral mistake.

For example, A offers to employ B for a term Offer Counter Offer


of five years. His starting salary is Rs 1 lakh
per year. This salary will rise by Rs 10,000 First Year Rs. 1,00,000 Rs. 1,00,000
every year. B goes through the agreement and
makes a counter offer. Accordingly his starting Second Year Rs. 1,10,000 Rs. 1,20,000
salary will be Rs 47,500 for half-year and rise
by Rs 5,000 every half-year. A accepts Third Year Rs. 1,20,000 Rs. 1,40,000
thinking that it means the same as his own
offer. But by a freak of arithmetic the rise of Fourth Year Rs. 1,30,000 Rs. 1,60,000
Rs 5,000 every half-year turns out to be
equivalent to rise of Rs 20,000 every year. At Fifth Year Rs. 1,40,000 Rs. 1,80,000
the end of five years, B pocketed Rs 1 lakh
more under his counter offer than under the Total Rs. 6,00,000 Rs. 7,00,000
original offer. Will the Court hold the contract
void for the mistake on the part of A?
An even more serious question arises in case of a trick played with geometric progression. In
James vs. Morgan, a horse was delivered in return for promise to pay a barleycorn for the first nail
of the horse's shoes, doubling it for every nail to the total of 32 nails. This amounted to 500
quarters of barley, which was doubtless much more than the promisor had expected. On an action
for non-delivery of barley, Hyde, J. held the contract to be good, but directed the jury to give only
the value of horse as damages. This means that the contract was undone and the value of the horse
as damages amounted merely to the relief quasi-contractual in nature.
Glanville Williams observed that this is the desirable result. According to him mistake as to the
logical implications of the contract ought to have the same effect as slip of pen or slip of tongue
LEGAL LANGUAGE AND LEGAL WRITING 17

and ought to render the contract void, especially when the logical implication is substantially
different from what was expected by the party under mistake.
In normal cases courts will enforce the logically implied consequences in the terms expressed in
contracts, statutes and other legal documents and transactions, as though they had been expressed
totidem verbis.
Consequences may also be logically implied not only from the terms of the contract taken alone,
but from these terms taken in connection with propositions of fact or rules of law. Thus in case of
wills, it was observed by Lord Westbury that implication may be founded upon a direction to do
something which cannot be carried into effect without, of necessity, involving something else in
order to give effect to that direction, or something else which is the consequence necessarily
resulting from that direction.
In some cases ulterior meaning may coincide with logical implication. But the meanings of the
two phrases are different. Ulterior meaning is a matter of psychology, not of logic. On the one
hand the logical implication of a statement may lie hidden for years. The mathematical truths lay
hidden until they were discovered. On the other hand, ulterior meaning of a statement need not be
logically entailed in its literal meaning. Thus when the host says It has stopped raining the
logical implication is not You may leave now.

THE STATIC ASPECTS OF MEANING


A word refers some referent which may be an object, a person, an animal, an event, some quality,
quantity, relation, time or some such thing. To clarify the relationship between a word and its
referent Ogden and Richards constructed the following diagram. This diagram is called Ogden and
Richards Triangle or Static Meaning Diagram.
Static Meaning Diagram: This diagram indicates that the relationship between words and
referent is neither God-given nor inherent in nature. Rather it is conventional. It exists only
because the members of the speech
community habitually used the word to refer
to that referent.
When we see a thing (referent) a thought
(reference) occurs in our mind. Thus there is
a direct connection between thing and the
thought of the thing. The thing is the cause
and the thought is the effect. The
relationship between thing and thought is,
therefore, a causal relation.
Similarly, when we hear a word (symbol) a
thought (reference) occurs in our mind.
Thus there is a direct connection between
word and the thought of the thing. The word is the cause and the thought is the effect. The
relationship between word and thought is, therefore, a causal relation.
Thus, the solid connection between a thing and the word which denotes that thing is made only
through the thought of that thing, which is indicated by the apex of the triangle.
Though this diagram appears convincing, Reed Dickerson points out that it suffers from at least 5
infirmities.
1. It suggests that the relationship between the word and the thing is as significant as the
relationship between the thing and the thought.
18 LANGUAGE AND THE LAW

If the word is viewed as ultimately designating a thing, the meaning would be affected
whenever the thing corresponding to the particular thought did not exist at all. But in fact
whether the thing exists or not, the meaning is not affected in any manner. e.g., the meaning of
there is a car outside does not depend upon whether or not there is a car outside.
Therefore, a word does not refer to the thing. It refers to the thought of the thing.
2. The left line of the triangle has to do a double duty.
(a) It indicates a causal relationship indicated above. When the word is heard the thought of
the thing occurs. The word is cause and thought is the effect.
(b) It also indicates a non-causal relationship. When the thought arises the word is used to
express it.
But unfortunately, the diagram does not differentiate between the two.
3. The diagram indicates that the relationship between word and thought (left side of triangle) is
similar to the relationship between the thing and the thought (right side of the triangle).
But the relationship between the word and the thing is a two-way relation. The thought may
be expressed by the word or the word may stimulate the thought.
On the other hand, the relationship between the thing and the thought is usually only one
way. The thing stimulates its thought, but the thought does not create the thing.
4. The relationship between the thing and the thought is a relation which falls within the field of
epistemology. This relationship is outside the field of meaning in the referential sense, and
therefore, beyond the reach of metalanguage.
The relationship between symbol and thought is a referential one.
By using the two relationships as two sides of a symmetrical triangle Ogden and Richards
seem to treat them as coordinate with each other.

5. The diagram does not take TOTAL MESSAGE TOTAL THOUGHT


into account the relationship
between symbols. A Symbol 2 A Concept 10

Static Meaning Diagram (Revised 1 6 8


Version): Having pointed out the
defects of the Static Meaning B Symbol 3 B Concept 10
Diagram suggested by Ogden and
Richards, Reed Dickerson suggests
an alternative diagram. 5

In this diagram, he has marked


4
different items with numbers 1 to A Thing 11
11. These numbers indicate the
following things:
7 9
1. Relation Between Symbols:
Normally our message or speech B Thing 11
consists of more than one word.
Except for some messages which REAL WORLD
can be given using a single word such as go, come, see, sit, yes, no, etc., all our
speech consists of more than one word. Thus, our message may be a sentence or a group of
sentences.
LEGAL LANGUAGE AND LEGAL WRITING 19

In two sentences, we may be using the same words. e.g., Dog, Cat and Chased. But just like in
case of a word, the meanings will be quite different. Thus, dog chased cat gives quite a
different meaning from cat chased dog, though both sentences use the same words. In
English, this difference in meaning is because of the order in which the words are used. When
the order is changed, the relation between the words change, and therefore, the meaning of the
sentence changes.
Thus, the meaning of a sentence depends upon the order in which the words are used in a
sentence, or the arrangement of words in a sentence. This is the syntactical meaning of the
sentence.
Similarly, there is also a relation between words in different sentences. In I read the book and
It was good, there is a relation between Book and It because of which, in the second
sentence It refers to Book.
2. Relation Between Symbols and Concepts: This is a subjective two-way causal relation.
It is subjective because it is the tendency of minds to use symbols or to react to symbols in a
particular way. When a word, for instance fire is heard by several persons, their reactions will
be different because their thoughts provoked by this word will be different. This depends upon
several aspects. The position of the hearer, the position of the speaker, the surrounding
circumstances, relation between speaker and the hearer, the past experiences of the hearer, the
knowledge of the hearer, etc. Thus the reaction changes from person to person.
It is a two-way relation because when the word is heard, the hearer reacts or gets a particular
thought. When the speaker gets a thought he uses a word or words to express it. Thus from
word(s) to thought and from thought to word(s) we have a two-way relation.
It is causal because when a word is heard the thought arises. Word is the cause and the thought
is the effect. There is, thus, a cause and effect relation between symbol and the thought.
Thus, when a message is heard, its meaning is not only dependant on the words used in it, but
also on other factors enumerated above. This is the pragmatic meaning of the message.
3. Another Relation Between Symbols and Concepts: This is an objective non-causal relation.
It is objective because words have some ordinary meaning also. These meanings do not depend
on any external factors mentioned above. Under any circumstance, they remain constant. Thus
the dictionary meaning of the word book is constant.
It is non-causal because, words are used to express thoughts. When the speaker uses a word to
express his thoughts, there is no cause and effect relation between words and thought, because
we cannot say that the word came into existence because of the thought.
This refers to the dictionary meaning of the word. It is the semantic meaning of the word.
4. Purported Relation Between Symbols and Things: This is not a significant relation. It does
not depend upon the existence or non-existence of the thing. Thus we may use a word to
express an imaginary thing like ghost. The meaning of the word depends upon our conception
of ghost and not on the existence or non-existence of ghost. If the concept changes, the meaning
also changes. Thus meaning depends not on the thing, but on our concepts. Therefore, this
relation has no significance in semiotic and is beyond its reach.
5. Relation Between Things and Concepts: This is a one way causal relationship.
It is one-way because when we see a thing, its concept or thought occurs in our mind. The other
way does not happen.
20 LANGUAGE AND THE LAW

It is causal because the thing is the cause which gives rise to the thought in our mind, which is
the effect. Thus there is a cause and effect relation between thing and the thought.
This relationship is described in epistemology (the languages of psychology and philosophy). It
is beyond the reach of semiotic.
6. Relation Between Concepts: Some concepts are closely related. e.g.: book and
knowledge. This is a mental relationship and is described in the language of psychology. It is
beyond the reach of semiotic.
7. Relation Between Things: Some things are also closely related. e.g., smoke and fire. This
relation is described in object language. It is beyond the reach of semiotic.
8. The Range of Characteristics That Define the Class of Concepts: Where concept A and
concept B belong to the same class, it is because they have some characteristics in common.
This class is described in metalanguage.
9. The Range of Characteristics That Define the Class of Things: Where thing A and thing B
belong to the same class, it is because they have some characteristics in common. This is the
objective description of the class.
10. The Particular Concepts That Comprise the Total Thought Expressed By the
Communication: They are described in the language of psychology.
11. The Particular Things That Correspond to The Particular Concepts Mentioned In Item
10 Above: They are described in object language. They have no significance for semiotic and
are beyond its reach.

DEFINITIONS
The main function of definitions is to explain the meaning of the words. Definitions presuppose
existence and knowledge of a language. Therefore, we cannot learn meanings of all words by
definitions. In the childhood we learn the meaning of words like "red" by being shown the objects
to which these words are applicable. Many words cannot be defined in terms of other words. But
majority of words admits of being replaced by a group of other words. This process is called
definition. Ogden and Richards define definition as "the substitution for the symbol to be defined
of a symbol or symbols that can be better understood." It involves the selection of known referents
as starting points and the identification of referent of definiendum by its connection with these.
Thus, a referent may be located by its similarity to another referent, by its relation in space or time
to another referent, or by its being the cause or effect of another referent.
Every definition of a word is a definition of:
1. its ordinary meaning, or of
2. its specially-assigned meaning, or of
3. its desired meaning.
The only scientific dispute over definitions is the dispute as to the ordinary meaning of the word.
Normally there is no dispute as to the specially-assigned meanings. The dispute over the desired
meaning is a conflict of value-judgments and not a scientific dispute.
It is frequently possible to settle the dispute as to the ordinary meaning of a word by taking a
number of admitted referents of the word and abstracting from them enough of their common
features to explain the use of te word. But the following three things must be remembered:
LEGAL LANGUAGE AND LEGAL WRITING 21

1. The number of features abstracted is often a matter of choice.


2. The word may have two or more ordinary meanings.
3. Every word is of doubtful application in marginal cases.
Those who dispute about the definitions of words and forget these points are wasting their time.
Many questions and disputes which appear to be in respect of the world are, in fact, only with
respect to the definitions. For example, "What is ...?", "What is the nature of ...?", and similar
questions are nothing more than requests for definitions. They do not call for the information in
respect of the empirical world. However, in the course of definition such information may happen
to be furnished.
Similarly, every enquiry into the nature of a class, quality or relation is a search for definition, and
every dispute over such nature of class, quality or relation is a dispute over its definition. It is not
an enquiry into, or dispute about, the facts, except to the extent that it relates to the ordinary
meaning of the word.
However, where the word is independently defined, there will be no dispute over its application.

Uses of Definitions
There are many reasons for using a definition. We may list the following four as the main reasons:
1. To announce the meaning of a new term: The writer may coin a new term to describe a new
situation. The meaning of this new term and the situation to which it is applicable are
described by his through a definition.
2. To clarify the meaning of a term:
(a) Confusion as to convention: We have already seen that no word has an inherent meaning.
The meaning of a term is assigned by the people who use it, and therefore, it is
conventional. Thus, the meaning of term may differ from place to place depending upon
the conventions. Thus a "billion" is 1012 according to British usage but 109 according to
American usage. To clarify according to which convention the term is used, definition is
necessary.
Convention also differs from user to user. Thus, some words have ordinary and technical
meanings. For example, "salt" ordinarily means sodium chloride (NaCl). But for a chemist
there are many chemicals which he calls by name "salt".
(b) Complicated, archaic, rare, foreign, less popular terms: some terms may be
complicated, rare, archaic, foreign words or less popular. They are defined by giving their
synonyms which are known to the readers, or by explaining their usage, etc.
(c) Ambiguity: Some words may be ambiguous. Definitions will clarify in what sense the
word is used by the author.
3. To modify the meaning of an existing term: The ordinary meaning of a term may be too
narrow or too wide for the purpose of communicating the idea in the mind of the author. If the
term is too narrow, it omits some of the things which the author wants to cover. If it is too
wide, it includes some of the things which the author does not want to cover. Therefore, the
author may want to redefine the word to give it an expanded or a restricted meaning.
4. To achieve brevity: Some terms are defined in order to avoid repeated descriptions. This not
only helps to achieve brevity, but also makes the document more convenient to read.
22 LANGUAGE AND THE LAW

For example "seller" may be defined to mean "the seller himself and also his legal heirs,
legatees, executors, administrators, assigns, agents, servants and successors-in-interest".
But for this definition, the entire description would have to be used repeatedly throughout the
document, making it difficult and inconvenient to read, and at the same time increasing the
length of the document.
5. Diminishing errors: According to Ellen Piesse, definitions can be used to reduce the errors in
a document. In many documents we have to use a particular name, figure, amount or date
repeatedly.
Thus we may want to use a date in a document and the same may appear at several places in
the document. Suppose after drafting the document, we want to change this date, we will have
to change it wherever it occurs in the document. This is not only laborious, but also prone to
errors. If we overlook one or two instances and the date remains unchanged in those places, it
may not only cause confusion, but also may result into unnecessary litigation. Therefore, it is
better to define a term to stand for this date, and use the term wherever this date occurs in the
document. Thus if we want to change the date later, we will have change it only in the
definition clause. This is not only easy, but also avoids unnecessary confusion and litigations.

Freedom of Stipulation and Author's Duty


According to Port Royal Logic the definition of names cannot be contested because we cannot
deny that a man has given a meaning to a word which he says he has given to it. The greatest
justification of the doctrine that stipulation is free is that it includes the claim for the right to that
redefinition of concepts which is essential to a science. The lexical definitions which merely
describe the common usage in all its unscientific nature. Therefore, Richard Robinson says that we
must be released from such lexical definitions and allowed to stipulate simpler, more precise and
more univocal words and ideas, if we are to have science.
James Mackay maintains that John Locke had a perfect right to stipulate that the word "idea" in
his Essay was to mean "whatever is the object of a man's thought when he thinks". The word
"idea" normally meant in those days, as it does today, "something essentially part of the thinker or
perceiver" and not "of the object he surveys". "Idea" is "an event in the thinker's mind" and not
"the object of someone's thinking". Thus, Locke's definition made a violent departure from usage.
As Richard Robinson observes, such definitions are not useful. Indeed they are dangerous. They
cannot free a reader from the influence of the normal meaning of the word. Many times the reader
may, under the influence of the normal meaning, misunderstand the author. Not only the reader,
but frequently the author himself may be misled by the natural meaning of the word. This his what
happened to Locke without his knowledge. He could not succeed in ridding himself from the
customary sense of the term idea. The result was the characteristic defect of Locke's Theory of
Knowledge. It is not possible to cancel the ingrained emotion of a word merely by an
announcement.
In stipulating a meaning for a word, an author demands that his reader shall understand the word
in that sense whenever it occurs in that work. The author thereby imposes upon himself a duty of
using the word only in that sense. He tacitly promises and tacitly prophesies that he will do so. But
it is not always that the author uses the word in that sense alone. Sometimes he may use the same
word in a different sense also. Then his stipulation implied a false promise and a false prediction.
When uses the word only in the sense he stipulated, his stipulation implies a true promise and a
true prediction.
If an author uses the word in a sense other than the sense he stipulated earlier in his work, it is not
necessarily a case of dishonesty. The survival of the old sense of a word after its supposes
LEGAL LANGUAGE AND LEGAL WRITING 23

replacement may occur entirely apart from the author's purposes and to their detriment as
illustrated by the case of John Locke.
The supreme rule of stipulation, according to Richard Robinson, is, therefore, to "stipulate as little
as possible".
Reed Dickerson is also of the same opinion when he states that one should not define a word in a
sense significantly different from the way it is normally understood by the persons to whom the
document is primarily addressed. He observes that it is a fundamental principle of communication
and one of the most important things in the whole field of legal drafting. But, as Reed Dickerson
laments, it is one of the shames of the legal profession that draftsmen so flagrantly violate it.
Reed Dickerson acknowledges the freedom of stipulation, but observes that the communicant who
ignores established usage is setting up unnecessary barriers between himself and the audience.
This is true even where he gives advance warning in the form of a specific definition that he is
using the word in a special sense. A lawyer who defines "wheat" to include "rice" is laying a trap
not only for his readers but also for himself. This is because of the psychological law that even a
legislature is powerless to repeal. Like ghosts returning to a haunted house, established
connotations return to the user who attempts to banish them. The author who gives a special
meaning to the word, later forgets it and reverts unconsciously to the established meaning, thereby
introduces either an unintended result or an intended result disguised as something else.

Methods of Definition
In his book, Definition, Richard Robinson lists the following seven methods of definition:
1. The Method of Synonyms: Here, the term is defined by equating it to a term with which the
audience is presumably familiar.
For example, "Rex" means "King".
2. The Method of Analysis: This method is also known as the Aristotelian Method. This
method involves two steps:
1. Finding the class or category to which the term belongs, and treating the term as a
species of that class or category.
2. Describing the aspects of that species which differentiates it from other species of the
same class or category.
For example, we have to define square.
We can treat "square" as a member of the class "polygons". But there are other polygons such
as pentagon, hexagon, heptagon, octagon, etc. The factor which differentiates square from
other polygons is the number of its sides. A square has four sides while pentagon has five,
hexagon has six, heptagon has seven, octagon has eight sides, and so on and so forth.
Thus we can define square as a polygon with four sides. But there are other polygons with
four sides. For example, rectangle, trapezium, etc. are all polygons with four sides. The factor
which differentiates square from these others is that square has equal sides.
Therefore, we can define square as a polygon with four equal sides. Again rhombus is also a
polygon with four equal sides. Therefore, we have to find out the factors which differentiates
between a square and a rhombus. The factor that differentiates between a square and a
rhombus is that square has its sides joined at right angle.
In this way, square can be defined as a polygon with four equal sides which are joined at right
angles.
24 LANGUAGE AND THE LAW

Thus we have come to this definition of square through a method of analysis, hence the
name.
This method is based on the theory initiated by Aristotle and widely accepted after his day.
This theory supposes that there is only one true definition of every unambiguous word, and
that definition is per genus et differentium (by class and differentiation). This theory is, in
turn, based on the Aristotle's "Doctrine of Essences". Aristotle taught that essences are fixed
in nature, and that a definition is a phrase specifying this essence. Therefore, he thought that
it is possible to dispute about "true" definitions as though they are matters of fact.
But, according to the present view words have no "true" definition and, therefore, it is
possible and permissible to define words variously. One definition may be proper for one
purpose, while for another purpose another definition may be proper. Genera (class) and
species are no longer regarded as an abjective and rigid ordering of nature. They are seen to
be no more than subjective conveniences of classification. Being man-made, they are
mutable, and it is possible to regard the same thing as belonging to different genera.
We also know that "essence" simply means "important feature" and that what is important is
a subjective and emotional matter. No definition ever states the sum total of the qualities that
seem to go to the being of a thing. It always involves a selection from those qualities. The
exact selection made very much depends upon the purpose of the definition.
Thus, man may be defined as rational animal (the classical definition), and also as a talking
animal, an imaginative, an artistic animal, a moral animal, a laughing animal, a weeping
animal, or a superstitious animal. None of these definitions explains perfectly all uses of the
word "man", because the word "man" may be applied to a lunatic, a deaf mute, a pauper, a
philistine, an egoist, a hypochondriac, and so on. Conversely, these definitions may, to some
extent, fit some of the lower animals. We have already observed this trouble with words.
There is always a possibility of dispute as to the limits of their application, and no definition
can get rid of this possibility.
Thus, Aristotles Doctrine of Essences is rejected today.
3. The Method of Synthesis: A term is stated by stating what it means in terms of relation of
the thing designated to something else.
For example, the word "red" means the colour a normal person sees when confronted with
light with a wavelength of 7,000-6,500 .
4. The Method of Implication: The term is defined by the implication of the term's meaning by
the context in which the term is used.
For example, a square has two diagonals, each of which divides the square into two right
angled isosceles triangles". A reader who knows the meanings of other terms can readily infer
the meaning of a diagonal.
5. The Denotative Method: It is the method of defining a term by listing examples to what it
applies to.
For example, the word "vehicle" refers to such things as bicycles, scooters, motorcycles, auto
rickshaws, cars, trucks, and buses.
James Mackay calls it exemplification method because it yields information about meanings
by the citation of examples.
Denotative defining is a process which results is denotative definitions, which in turn yield
connotative ones. It seeks the connotation of a word through its denotation.
LEGAL LANGUAGE AND LEGAL WRITING 25

The denotative understanding of the meaning of a term means the capacity to recognise the
denotation, and to recognise it as that of the class of which the term is the name.
The connotative understanding of the meaning of a term means the capacity to recognise it as
that the class of which the term is the name.
The mental association between a name and the specimens of which it is the sign constitutes
the denotative understanding. In the above example, between "vehicle" and "bicycles,
scooters, motorcycles, auto rickshaws, cars, trucks, and busses".
The mental association between a name and the attributes of which it is the sign constitutes
the connotative understanding. In the above example, between "vehicle" and "modes of
transportation of people and goods".
In serious thinking, connotative understanding is in most cases essential. Mere denotative
understanding will not serve the purpose. Substitution of denotative understanding for
connotative understanding leads to failure of the reasoning process.
Denotative understanding implies conscious connotative understanding because to be able to
classify specimens together under a common name requires that their common characteristics
shall in some way be recognised. But, many times this does not happen. A person may
encounter many terms whose denotations can be recognised by him yet he cannot give their
connotations. We may call this an unconscious knowledge of connotations, because, he could
not have given the denotations without the knowledge of connotative understanding of those
things.
6. The Ostensive Method: This is the method of defining the term by pointing at or showing
what that term refers to. This method of definition is normally used in oral communication. In
written communication also it can be used by showing the drawing, pictures and photos. It
has no use in legal documents.
7. The Rule-giving Method: This method defines a word by describing the kind of situation in
which it is used.
For example, if on any occasion you want to refer to the next preceding day, say "yesterday".

Some Special Kinds of Definitions


1. Unnecessary Definitions: Definitions are used for different reasons, some of which are
mentioned above. A definition which does not serve any such purpose is an unnecessary
definition.
For Example, a "form" is a piece of paper containing blank spaces, boxes or lines for the
entry of dates, names, descriptive details or other items.
2. Degenerate Definitions: It is a definition which stipulates degenerate meanings for the
words. A redefinition of a word degenerates it if it leaves us bereft of any means of indicating
an important distinction that could be indicated by the word in its previous sense. Such a
definition robs the word of its special meaning and makes it do forced labour as mere
synonym of some other word. Richard Robinson warns us against the use of such definitions.
For example, the term "Department of the Army" means the executive part of the Army
Establishment at the seat of the government.
3. Stuffed Definitions: The purpose of a definition is to identify or clarify the term defined.
Giving the full history of he term defined, or to give a full list of its ingredients, or to tell how
26 LANGUAGE AND THE LAW

to bring it into existence is not the purpose of the definition. Therefore, Reed Dickerson
warns us against stuffing the definitions with substantive rules of law.
For example, the word "peanuts" for the purpose of this Act shall mean all peanuts produced,
excluding any peanuts which it is established by the producer or otherwise, in accordance
with regulations of the Secretary, were not picked or thrashed either before or after marketing
from the farm, or were marketed by the producer before drying or removal of moisture from
such peanuts either by natural or artificial means for consumption exclusively as boiled
peanuts."
4. One Shot Definitions: It is a definition which defines the meaning of the term and uses it
once only.
For example "This is Parking Space for Two Wheelers". "Definition of Two Wheelers: Two
Wheelers means, for the present purpose, only scooters and motorcycles, but not carts,
bicycles, mopeds, etc."
Here twenty one words are used to state what can be better stated by three words, and these
three words are included in those twenty one.
Though such definitions are not unnecessary in the sense that they do not serve any purpose,
we can still call them unnecessary in the sense that they could have been avoided easily.
5. Partial Definitions: A definition does not necessarily have to set forth everything which is
included and everything which is excluded by use of a particular word. Frequently it may be
desirable to state what are excluded without stating what is included by the use of the word.
In some other cases it may be desirable to state only some of the things which are included
within a certain term.
The draftsman can avoid most of the pitfalls of defining by staying with the partial definition
and using the definition only to resolve the marginal uncertainties of meaning.
For example, the term "house" includes the plot on which the house stands.
Partial definitions are mostly worded as extensive definitions and use the connecting word
"includes". They do not purport to change the ordinary meaning of the word entirely, but
either clarify its meaning or modify its meaning only to the extent given by the definition.
Thus, if we define the word "vehicle" as to include carts and lifts, we do not mean that the
word "vehicle" is used in a sense substantially different from its ordinary meaning. The
ordinary meaning continues to hold good. If the reader has any doubt about whether "cart" is
a "vehicle", it is removed by this definition. Ordinarily a "lift" is not treated as a "vehicle".
This definition modifies the ordinary meaning to that extent by including "lift" within the
meaning of "vehicle".

CONCEPTS AND CONCEPTUALISATION


Concepts
Language as a Conversion of the Nonverbal World into a Verbal World. In a hypothetical world
where there is no language, behaviour would consist of response to stimuli of the senses: sight,
hearing, touch, taste and smell. The language tries to reproduce all these varieties of experience
through the stimulus of only one of the senses, that of the sound. This is called the symbolic
function of words.
We perceive five different types of nonverbal experiences through five different sense organs:
LEGAL LANGUAGE AND LEGAL WRITING 27

1. Sight (Vision) - Eyes 4. Taste - Tongue


2. Sound (Audio) - Ears 5. Touch - Skin
3. Smell - Nose
All these experiences are registered by our brain. If we want to convey these experiences to
another person, we have to convert them into nonverbal expression using language. We use words
to symbolise each of our nonverbal experience. Thus a word is a symbol of our experience and the
function of the word is symbolic function. When the person to whom we speak hears the word, the
word reproduces the nonverbal experience in his mind.
Thus, when a person touches a piece of metal, he may feel that it is hot. This is a nonverbal
experience which he perceived through his skin. He converts it into verbal expression by the use
of language and says the piece of metal is "hot". The word "hot" reproduces the feeling of heat in
the mind of the listener and thus the listener understands what is experienced by the speaker.
But there are two requirements for this:
1. The listener should understand the word. The listener must understand the language and its
conventions.
2. The listener should have undergone a similar nonverbal experience in the past. If the
listener has not experienced a similar nonverbal experience before, the word cannot
reproduce it in the mind of the listener. Thus the word "red" cannot reproduce anything in
the mind of the listener who is congenitally blind.
The effect of a word in "reproducing" the perceptions, such as visual perception, is its "meaning".
Thus meaning is the relationship of language to the non-verbal experience. Therefore, language
has to depend, ultimately, upon nonverbal experience for its meaning.
Now, the speaker and the listener both have the knowledge that the piece of metal is hot. The
knowledge of the speaker is the result of his experience which he perceived through his sense
organ, i.e., skin in this case. But the knowledge of the listener is from the information which he
gathered from the speaker.
Single words do not produce the complete "picture" of any nonverbal experience. Actually a word
is a selection of a limited number of characteristics of nonverbal experience which are common to
a number of similar experiences. This process is called abstraction. To the extent that language
selects only a limited part of the nonverbal experience, it is abstract.
As a word is only a selection of a limited number of characteristics of a nonverbal experience, it is
evident that different selections can be made from any one experience. The selection of
characteristics depends upon the purpose for which it is made.
When the speaker touched the piece of metal, he not only experienced that it is hot, but also that it
is hard, smooth, cubical, etc. But the word "hot" does not convey his other experiences than the
temperature of the piece of metal. Thus the speaker has selected one of the several aspects of his
nonverbal experience. This selection is based upon the purpose of his communication.
On this basis, we can say that language has two aspects: selective and purposive. Therefore, we
can also say that language is not simply a "picture" of nonverbal experience, but is an
"interpretation and analysis" of nonverbal experience. It is an "organisation" of what may be called
a "chaos" of experience. The result is the concepts.
This interpretation, analysis and organisation is made by different language cultures in different
ways. A person brought up in any particular culture learns the interpretation of experience, or
concepts, in learning his language.
28 LANGUAGE AND THE LAW

Thus, the essence of a language is to reflect, express and perhaps even to affect the conceptual
matrix of established ideas the culture to which it belongs. That is the reason why language is
called a "conceptual map of human experience".
At more abstract levels language has no counterpart in direct sense experience. Therefore, it is
impossible to think the language concepts without the use of language. The entire process of
analysis and organisation of experience by the mechanism of language is a "thinking" process.
We can recognise the way in which language is related to experience and its relationship to
"thinking" in many different applications. One such thing is the analysis and application of rules of
law.
All rules of law are generalisations. The degree of generalisation may, however, vary from rule to
rule. In any case, rules do not describe unique facts of any particular case. hey are applicable to a
whole class of cases. Unless there is such a generalisation, we cannot call it a rule, and it cannot
function as a rule. Facts of any case are unique and unrepeatable, and a description limited to that
case will never find another case that it fits. The facts of a rule are "type" facts whereas the facts of
a case are "unique" facts.
Thus, we speak of factual advocacy which is quite different from oratory. Factual advocacy
involves the same kind of selective process as abstraction, but at a more elementary stage. Here
the advocate selects elements of a total factual situation and achieves factual persuasiveness by
getting the hearer to "see" what the advocate wants to see him. His selection is determined by the
standard of justice, and the specific situations. Guidance in making the selection is provided by the
rules of law. Rules of law reflect legal concepts which are more complex compared to linguistic
concepts.

Conceptual Clarity
An advocate should have conceptual clarity, without which he cannot be successful. It is necessary
at every stage of his profession.
When a client approaches an advocate, he comes with some problem and seeking some relief. He
tells many facts, some of which are relevant to his case and others irrelevant. The advocate has to
find out the nature of the case. This is possible only if the advocate has conceptual clarity. Only
after determining the nature of the case, the advocate can select relevant facts and ignore irrelevant
ones. Only then he can find out whether the facts at hand satisfy the requirements of law and what
are the chances of his client's success in the litigation. In short, the advocate's function is to refine
these general objectives and then to develop a practical means for carrying them out. This mainly
involves selecting most appropriate classes and entities necessary for the job. Conceptual clarity is
also necessary for good drafting, for development of sound substantive policy and for its
communication.

Conceptual Problems
In many cases the advocate can use established concepts. The problem is with selection. The
advocate should not select too broad or too narrow a concept. In this process of search for right
concepts, the advocate does not search for objective fact or "truth". He is only concerned with
searching for useful concepts. Utility and clarity depend largely upon the conceptual simplicity
inherent in an economy of ideas. This economy of ideas depends, in turn, on achieving the greatest
degree of generality which is not inconsistent with the objectives to be expressed. This process
involves consideration of the particulars of the case to see whether they form or tend to form a
class. If it is the former, reference to the class merely avoids over-precision. If it is the latter, and if
the purpose of the case is to cover the entire class, a significant omission is disclosed. This
LEGAL LANGUAGE AND LEGAL WRITING 29

omission is repaired by substituting class names for particulars, when the client points to the
omission. The uncritical acceptance of established concepts often results in the advocate's failure
to adequately tailor the case to his client's substantive needs.

Rise and Decline of Concepts


Everybody is conscious of the fact that words come and go according to the vagaries of usage. But
that the same thing happens to the concept is not known to many. Rise and fall of concepts or the
change in concepts depends upon social standards. For example, when ordeal by bread, a medieval
test of guilt went out, the name and concept "corsned" went with it.
Some concepts of continuing conditions have disappeared simply because their importance
lessened with the incidence of their use. A good example is the burnt part of a candle wick, a
recurrent significance of which once produced a continuing concept called "snot". Today, although
candle wicks still burn, the occasional wick problem no longer supports a continuing concept
identified by its own name. Today, if such a concept becomes useful in a specific situation, we
simply recognise it ad hoc and describe it in general language, such as, "the burnt part of the
candle wick".
When a new fact is born, it always has, at first, a low value. Then, depending upon the potential
quality of the fact, its value increases, either slowly or rapidly, or the value wanes and disappears.
Values give rise to structures and structures lead to reality. Therefore, our structured reality is pre-
selected on the basis of value, and to understand structured reality one has to understand its value
source.
One's rational understanding of a concept is modified as he experiences it and sees that a new and
different rational understanding has more quality. When he finds a rational basis for rejecting old
idea, he rejects it. Reality is not static, but is partly made of ideas expected to grow as one grows
and as the society grows, century after century.

Improvement of a Concept
Analysis of a concept sometimes means to improve it. Improvement of a concept means
substitution of the concept by a very similar but superior concept. Concepts are improved, other
things being equal, when they are altered so as to fit into a better or a larger system.
Often when we try to analyse things, we come out with an analytical concept of a new thing rather
than the thing we started with, because our analysis reveals that our concepts are defective.
Improvement of a concept is a very difficult and groping operation. As Frege put is, "It often
requires great intellectual work, which may take several centuries, to apprehend a concept in its
purity, to extract it from extraneous coverings that hid it from the eye of the mind."
Every improvement of a concept carries along with it a simulative redefinition of the word
expressing the concept. Changes in insight lead to change in nomenclature.

LOGICAL POSITIVISM
Syntactical meaning is the meaning of the words taken together, as in phrases, propositions and
questions.
It is possible to refer to the same referent in two phrases or sentences composed of quite different
words, e.g., the King of England and the owner of Buckingham Palace. Whether the meaning
of these two phrases is same cannot be answered in one word. For a hearer who knows the
relevant facts and therefore is able to make the desired reference in each case, it may be said that
30 LANGUAGE AND THE LAW

they have the same meaning, though the thought process is different in each case. But for a hearer
who does not know these facts, they are different sentences.
This illustrates that it is possible to refer to the same referent through different phrases or
sentences. Thus a testator may give his gold ring or all his gold ornaments. Both may mean
the same thing if he has no other gold ornaments than the gold ring. The difference is in the mode
of reference and not in the referent. In law, however, the first legacy is a specific legacy while the
latter is a general legacy.
Ogden and Richards direct their main attention to the semantic meaning or the meaning of the
individual words. It appears that they regard syntactical meaning as a product or synthesis of the
meaning of the separate words employed, when interpreted in the light of rules of grammar. In
most of the cases this may be an adequate explanation, but there are difficulties.
One of the difficulties to which Glanville Williams draws our attention is that some words used in
a sentence have no referents, or, if they have any, refer only to language itself. Examples are is,
than, not, true and false.
Therefore some writers take a different approach towards the problem. They consider the meaning
of the complete sentences or questions, rather than the meanings of individual words. One such
group is called the Vienna Circle or the Logical Positivists.
An American physicist, P.W. Bridgman wrote a book, The Logic of Modern Physics in 1928
and urged that for a scientist a question has a meaning only if it can be verified in sense
experience, i.e., only if a physical operation can be performed which will give an answer to it. If
they cannot be tested by an experiment, the question is meaningless. Many questions asked about
social and philosophical subjects including law will be found to be meaningless from this point of
view.
This may have certain practical merit in saving us from bothering our heads over questions that in
the present state of knowledge are insoluble. But otherwise most of us may not agree that a
question has a meaning only if it can be experimentally tested. For example, whether there is life
beyond earth is significant even though the answer may not be available today.
Logical Positivists say that it is enough if a statement is, in principle, verifiable in sense-
experience, even though it cannot factually be so verified, and even though it may be empirically
false. Thus they weaken Bridgman's theory. But at the same time they strengthen this theory in
another count by saying that this is true not only for scientists, but for everyone else.
Thus, no sentence, by whomsoever uttered, says anything unless it is empirically verifiable, if, and
only if, we know the conditions under which it is true, and the conditions under which it is false.
This simple theory has become a weapon of tremendous destructive power in the hands of Logical
Positivists.
One of its consequences is that metaphysical discussion becomes regarded as nonsense, because it
is beyond our senses of perception. Metaphysics claims to communicate knowledge about
something that is beyond experience. Thus they cannot avoid being called meaningless as per
Logical Positivists.
If this theory be accepted, it offers a means of escape from the perennial problems of philosophy,
because it shows:
1. that many statements of a philosophical or metaphysical character are neither true nor false
but literally senseless, and also
2. that many statements that seem to be opposed to each other are identical in meaning and
differ only in vocabulary.
LEGAL LANGUAGE AND LEGAL WRITING 31

Thus it is the principle task of Logical Positivists to expose the pseudo problems of philosophy
and many of their specific criticisms of these problems are extremely effective.
Against these advantages, there is one consequence of the theory of Logical Positivism that is not
likely to be accepted by the average lawyer, namely, its demolition of religion and ethics. religion
is a branch of metaphysics. All propositions regarding God, reincarnation, life after death are not
acceptable to Logical Positivists. Similarly moralists statements of what is good, right or
just, etc. are either statements of moral feelings of the members of a particular society, or else
devoid of factual content being only expressions of emotion, devoid of what Carnap calls
theoretical sense.
Though Logical Positivism is attractive in some respects, it is open to several objections. Even in
the realm of physics it is somewhat defeatist to pronounce a question meaningless merely because
at that moment one cannot think of a way of answering it. For example, at one time physicists
considered it meaningless to ask for the weight of a single atom. Today, the weight of an atom can
be stated to within its ten-thousandth part.
Similarly, when A tells B, You ought to be honest, it seems to be using words in a most unusual
sense to say that this statement is meaningless noise. Even if we can call the statement an emotive
statement, it is not meaningless in the usual of the word meaning. After listening to A, B who
was a criminal may change into an honest man. A sentence designed to have a specific effect on
the conduct of the other, and actually having that effect cannot be called meaningless in normal
and usual sense.
To explain this, Logical Positivists have to adopt a different meaning for the word meaning.
According to them meaning is equivalent to what determines truth of a statement. Like any
other definition, this definition must be taken as postulate and cannot be proved. It is somewhat
odd in two respects:
1. Logical positivists who take delight in unmasking the verbal controversies of philosophy,
themselves raise an issue as to the meaning of meaning, which is itself a verbal controversy.
2. The empirical criterion of the Logical Positivists is itself by its own rule meaningless.
Law, like the rules of ethics or religion, is a statement of ought, and therefore, the meaning of
a rule of law stands or falls with the meaning of a rule of ethics or religion. Since for every
lawyer a rule of law is meaningful within the ordinary and usual sense of the term meaning, it
follows that the lawyers must reject the definition of meaning advanced by Logical Positivists.
Glanville Williams, however, opines that with only a slight modification of Logical Positivism a
theory coinciding with a value judgement and therefore with a rule of law can be produced. We
have already observed that a rule of law has two elements: referential and emotive.
Referential element indicates the state of affairs desired or not desired. The emotive element
indicates this desire or aversion. The two elements may be separated. Thus, the rule Do not steal
can be expressed as false proposition of the fact that people do not steal. If this rule is followed by
all, the proposition will be true. Thus the proposition of the fact derived from value judgement is
empirically verifiable, and therefore is meaningful even as per Logical Positivism.
Similarly when a person writes a book describing Utopia or Ram Rajya, we may say that the facts
stated in the book are all false. Thus, they are meaningful, because their truth is tested. Now, after
writing the book, the author expresses his wish that India was like that, it would be an emotive
statement. If the book were written with an ought throughout, instead of in the indicative mood,
the expression of emotion would have been put into the book; but otherwise the analysis would be
the same.
32 LANGUAGE AND THE LAW

REALITY OF UNIVERSALS
A famous medieval controversy concerning meaning was the dispute over the reality of universals.
Plato classified things into two categories:
1. Objects of knowledge
2. Objects of opinion
Certain objects exist in real world. We can perceive them and, therefore, know them. Therefore,
they are called objects of knowledge. These are things and events. Other objects do not exist in
real world. They exist only in our minds or in our opinions. Therefore, they are called objects of
opinion. They are relations and qualities. Plato called objects of knowledge "noumena" and
objects of opinions "phenomena". Objects of knowledge do not depend upon anything else for
their existence while objects of opinion depend upon objects of knowledge and on our minds for
their existence.
Thus a flower (a substance) exists in real world. Its existence does not depend on anything else.
We can see it; we can smell its fragrance; we can touch it; we can also taste it. Thus we can know
it. Therefore, flower is an object of knowledge. But beauty (a quality) does not exist in real world.
It exists only in our opinion. Its existence depends upon the flower and on our opinion. Thus, if the
flower does not exist, its beauty cannot exist. Also, the beauty of flower depends upon our
opinions. Therefore, beauty is an object of opinion.
The following can be listed as the differences between objects of knowledge and objects of
opinion:
1. Objects of knowledge exist in real world, objects of opinion do not. Objects of opinion
exist only in our minds.
2. Objects of knowledge do not depend on any other thing for their existence. Objects of
opinion depend upon objects of knowledge or on our minds for their existence.
3. The existence of objects of knowledge is continuous. But, as the objects of opinion
depend upon our minds for their existence, their existence is not continuous, because we
do not think of anything continuously. Objects of opinion have existence only as long as
they are in our minds. AS soon as we stop thinking about them, their existence ceases.
4. Objects of knowledge are objective. They do not defer from person to person. Objects of
opinion are subjective. They differ from person to person. Thus a flower is a flower for
all. But whether it is beautiful and if beautiful, how beautiful, depends upon the beholder.
5. Object of knowledge are genuine, whereas objects of opinion are deceptive. Objects of
opinion have only appearance.
6. Object of knowledge are intelligible, while objects of opinion are opaque. Objects of
opinion make no sense when taken at their own level. Thus, there cannot beauty if there is
no flower.
Though the controversy regarding the reality of universals was started by Plato, it is believed that
a question asked by Prophyry is the starting point of the controversy. Prophyry asked whether
classes exist in our minds or outside it.
We observe that many things in the nature are so very similar to each other that we can call them
by the same name. We, for example, notice that several flowers are so similar to each other that
we can give them a common name, say "rose". One such common character of roses is their colour
which we call "red". Similarly we give names "man", "book", etc. to different things having
similar characteristics.
LEGAL LANGUAGE AND LEGAL WRITING 33

The question is whether there are any such objects as "rose", "redness", "man" and "book", etc. in
this universe or are there only individual roses, individual red things, individual men and
individual books, etc. In other words, is there any objective reality corresponding to these
concepts? In the language of semantics, do these words have any referents, and therefore, any
meaning?
This question gave rise to two groups of philosophers. The first group was the followers of Plato
and they were called "realists" and the other group was called "nominalists".
Realists argued that the concepts of quality and relation are real. These concepts were called
"universals". Realists used the following logic to prove that universals are real.

Socrates is real.
Socrates is man.
Man is real.

This is similar to saying A=B and A=C therefore B=C.


They further stated,

Man is real.
Man is rational.
Rationality is real.

Nominalists argued that only individuals with certain attributes were real. Thus we have heavy
things, but no heaviness. There are intelligent men, but no intelligence. There are just acts, but no
justice. Heaviness, intelligence and justice are all names given to certain qualities. They do not
have any existence in reality.
This controversy attracted a lot of attention and nominalists were supported by the majority. The
controversy still continues.
According to semantists all universals are arrived at by a process of abstraction. Abstraction is a
process of imaginative selection of some one characteristic of a complex situation so that it may be
attended to in isolation. This is a familiar process in everybody's life. For example, imagine a baby
in whose house there is a dog called "tiger". The child cannot call it "tiger" and therefore calls it
"bow-wow". The child sees another dog and calls that dog also "bow-wow". For the child all the
dogs are the same. The child cannot differentiate between two dogs. When the child grows up, it
acquires the ability to differentiate between different dogs. Now it knows that all dogs are not
same but they are different individual dogs. But, it still continues to call then by the same name,
"dog". Thus, now the same name is used to refer to all dogs though they are different. This is the
process of abstraction.
Abstraction is, thus, the perception of similarity in spite of differences. Without abstraction, there
can be no recognition of similarities. Without recognition of similarities there can be no
advancement of knowledge.
But the process of abstraction has its own dangers. The danger is more pronounced particularly
when we hypostasise (objectify) abstractions. We hypostasise abstractions as a matter of linguistic
convenience. We normally hypostasise words expressing qualities and properties. Thus, we speak
of "justice" and "redness" as though these things were the part of the stuff of nature.
Semantically there is no difference between "just" and "red", and "justice" and "redness". The
difference is only in grammatical form. Qualities like these cannot be found by themselves in
34 LANGUAGE AND THE LAW

nature. In real life there are only people, things, conduct or events to which qualities are
applicable. Without people, things, conduct or events there can be no qualities.
When we appear to speak of relations we are merely using the words as tools which do not have
any particular referents. All these words are mere symbolic accessories. They are invaluable and
indispensable words, but they are also dangerous in that they are impediments to straight thinking.
Virtue, liberty, democracy, peace, India, religion, glory are all such invaluable words and they are
indispensable. But if they are uncontrolled, they can confuse clearest thoughts. They are fought
and died for. Yet, we do not always have a clear realisation of what we mean by them. If they
mean anything, it can only be a meaning in relation to the actual lives of individuals. By
themselves many of them are abstractions, on the meaning of which there is little agreement. To
control them we have to discipline ourselves to find the lower order referent in the world of real
life, i.e., to find an object in which the quality is conceived as inhering. Unless the speaker and the
listener agree on some such concrete referent for the word in question, a proposition relating to
that word cannot be intelligently discussed.

Law and Reality


Abstraction is very important in jurisprudence. It is also of some value in administration of justice.
The consequences of failure to reduce an abstract word to its lower order referent can perhaps be
illustrated from the following case.
Re Nottage: A bequest was made in this case, for providing a cup to "encourage the sport of yacht-
racing". Court of Appeal held that the purpose of bequest is charitable. Lindley, L.J. observed that
"a gift for the encouragement of a mere sport could not be charitable". We can interpret this
statement to mean any one of the following two things:
1. No gift for the encouragement of a sport is charitable.
2. No gift for the encouragement of a sport "as such" is charitable, but a gift to encourage
human beings to take part in the sport is charitable.
If we say that Lord Lindley's statement can be given the second meaning, the distinction is only a
verbal distinction. The referent "sport" or "yacht-racing" is not an abstract term, but is a number of
real yacht-races by actual human beings.
However, Lord Lindley had the first meaning in his mind. He said that "a gift, the object of which
is the encouragement of a mere sport or game primarily calculated to amuse individuals apart from
the community at large, cannot be ... charitable". Again, here the phrase "individuals apart from
community" means "some people rather than all". Then again, a sport cannot amuse all. Therefore,
what Lord Lindley meant by "individuals apart from the community" is that they formed "a
minority of the community". If this is the case then to encourage some of the sports may be
charitable.
In Re Gray, Romer, J. held that a gift to provide sport for a regiment was charitable. He observed
that it was in the public interest that soldiers be physically fit. He distinguished Re Nottage from
the instant case on the ground that in Re Nottage the gift was for encouragement of a sport, while
in the instant case it was for the benefit of a regiment.
The distinction is not between "sport" and "regiment" but between "those who take part in sport of
yacht-racing" and "the members of a regiment". Apparently, the distinction means that the health
of those who take part in yacht-racing is unimportant to the community, while the health of the
members of the regiment is important to the community. This distinction will be found to be
unsatisfactory as soon as we note that the participants of yacht-racing form a section of the
community.
LEGAL LANGUAGE AND LEGAL WRITING 35

The denial of independent reality of universals is important for jurisprudence chiefly because it
necessitates a theory of law that will not assume law to be some entity mysteriously existing on its
own account, independently of the external world and of the world of mind.
We talk of rules of law as if they are real entities. But this is not true. We cannot ascribe a
permanent existence to a rule of law. A rule exists only as the content of a notion in a human
being. No notion of this kind is permanently present in the mind of anyone. The imperative
appears in the mind only intermittently. The position does not become different just because these
rules are reduced into writing. This writing is only a figure on the paper and has the function of
calling up certain notions in the mind of the reader.
But all the philosophers do not give such common-sense solutions. They try to make some
independent reality out of the universals, and are ready to go to any extent for that purpose. Dr.
Joad, for example, argues that Hamlet is in some way a subsistent object with an independent
being. He rejects the argument of some who say that Hamlet consists of ideas in our own minds,
and in the minds of all those who are performing, or seeing, or reading the play, or at any time
have performed, or seen, or read it and remember what they have performed, saw or read. This is
quite similar to our observation of the existence of law, and therefore, is of interest to us. Joad
gives four grounds in support of his argument, and for rejecting the argument of the opponents
who claim that Hamlet is not real:
1. When we say that "Hamlet is a great play", we are not referring to these minds and
experiences, the most of which are unknown to us.
2. If we are referring to our minds and experiences, we are giving a totally undeserved
compliments to ourselves.
3. If the view of the opponents were true, then if all these persons who hav performed, seen
or read Hamlet are dead, Hamlet should cease to be a great play.
4. When we speak about Hamlet, it seems that we are not speaking about our experience but
about the cause of our experience.
Glanville Williams observes that all these difficulties disappear if we say that "Hamlet" means
either or both of the following:
1. A collection of symbols capable of evoking ideas and emotions.
2. The ideas and emotions themselves.
He observes that there is no reason to conclude, as Joad does, that Hamlet is "a member of a class
of subsistent objects which are neither mental or material, but are, nevertheless constituent of
factors of the universe possessing being in their own right".
Glanville Williams then proceeds to answer the four contentions of Dr. Joad as under:
1. We are not referring to other peoples ideas, but to the symbols and their meaning to us.
2. We are not paying compliment to ourselves, but to the man who had the genius to put
those symbols together by that way.
3. If all those who have performed, seen or read Hamlet would cease to have meaning. It will
only be some symbols on paper. Whether Hamlet itself will cease to have existence is a
complicated question which cannot be answered as "yes" or "no". It would exist only as a
number of marks on paper.
4. We are in fact speaking in part of something that is the cause of our experiences, viz., the
marks on the paper or the general effect performed on the stage.
36 LANGUAGE AND THE LAW

Similarly, law is a collection of symbols capable of evoking ideas and emotions, and the ideas and
emotions so evoked. Glanville Williams observes that it is futile to dispute whether law is
primarily emotion. The three are inseparably connected and at different times different things will
be predominant.

OBSCURITIES OF MEANING
Language is not only subject to inherent limitations, but also to serious defects which cannot be
easily rectified.

Fringe Meaning
Some words have no specific meaning. They are vague in their meaning, as for example about,
near, more or less. Such words give considerable trouble when they occur in legal documents.
Therefore we must try to avoid them as far as possible. According to Glanville Williams there are
5 types of such vague words.
1. Words indicating qualities of continuous variation
2. Class-names
3. Names suggesting unity
4. Mathematical terms
5. Words uncertain in their time-reference.

Words Indicating Qualities of Continuous Variation


Certain pairs of words indicate opposites, e.g., head and tail, black and white, etc. In cases
like head and tail these meanings may be comparatively clear. But consider words like
white and black, night and day, open and shut, good and bad. At first sight
opposites like these may seem to be mutually exclusive. According to a French proverb, A door
must be either open or shut. Similarly we may think that it must always be night or day, and
cannot be both at the same time. So obvious did this seem to the founders of logic that they
erected it into one of the three laws of thought and said, A thing cannot be both A and not-A.
But this rule can be equally false. A door can be, in a sense, both open and shut, or neither open
nor shut, for it may be ajar.
White is a colour which reflects all light and black is a colour which reflects no light. Nothing can
be totally black or white. A white thing may not reflect all colours. Thus we have more white and
less white things. Similarly there are more black and less black things. White and black are thus
only matters of degree.
Thus all opposites are the extremities of a series, i.e., its first and last members. These extremities
may be purely notional and in the real world they may not exist at all. We may not have anything
which is a perfect white or perfect black.
It is very difficult to say at what point of time day changes into night or night changes into day.
This situation is well exposed by sophism. The sophism consisted in propounding the question,
Does one stone make a heap? - No. Do hundred stones make a heap? - Yes. Then questions
are asked for two stones, ninety nine stones, three stones, ninety eight stones and so on, until the
victim is pinned down to some absurd prposition as that eight stones do not make a heap but nine
stones do. This illustrates that there is an area of uncertainty between the number of units that
certainly do and those that certainly do not make an aggregate in question.
This kind of opposite polarities may give rise to two types of fallacies:
LEGAL LANGUAGE AND LEGAL WRITING 37

1. The fallacy of black or white - though common, less dangerous


2. The fallacy of black is white - though rare, quite dangerous
Fallacy of Black or White: This is a fallacy of supposing that every object must be either black
or white, without allowing the possibility of its being something in between. This is obvious in
case of black and white because we know that there is a grey shade in between. But as applied to
the words like good and bad, honest and dishonest, intelligent and un-intelligent this
fallacy causes needless controversy.
Fallacy of Black Is White: This fallacy consists in arguing that black is white because there is
a range of half-tones in between. Thus, in a tin of white colour one drops of black colour is added,
that will not become a tin of black colour. If we go on adding one drop of black colour at a time,
we will reach a point when we cannot call that a tin of white colour. But exactly at what point of
time this will happen is nearly impossible to say.
This fallacy is very much dangerous in law and ethics. It will make every exception swallow up
the rule.
For a common man this is not a very significant problem. Whether a collection of stones is to be
called heap or not is not a matter of concern for him. When a recipe tells the housewife that a
pinch of mustard is to be used, she cannot tell how many grains make a pinch, but she can guess
the meaning of the statement.
But with law this is different. Whether a man should be left in freedom or detained in a mental
institution depends upon whether he is judicially classified as sane or insane. To make a person
liable in tort, there must be proximity of cause and effect. There are so many such cases where it is
difficult to draw a line separating the two extremities.
Judges refuse to be frightened by these difficulties. They do not hesitate to say that the case falls
on plaintiff's side or on defendant's side just because the line is difficult to draw. Different judges
have expressed this in different ways:
It hath been urged at the bar, where will you stop if you do not stop at Child and Baylys
Case? I answer, I will stop everywhere when any inconvenience appears, nowhere
before.
- Lord Nottingham in Duke of Northfolk's Case
It is something like having to draw a line between night and day; there is a great
duration of twilight when it is neither night nor day; but on the question now before the
Court, though you cannot draw the precise line, you can say on which side of the line the
case is.
- Blackburn, J. in Hobbs vs. L and SW Railway
Courts of justice ought not to be puzzled by such old scholastic questions as to where a
horses tail begins and where it ceases. You are obliged to say, This is a horses tail, at
some time.
- Chitty, J. in Lavery vs. Pursell
The Attorney General has asked where we are to draw the line. The answer is that it is
not necessary to draw it at any precise point. It is enough for us to say that the present
case is on the right side of any reasonable line that could be drawn.
- Lord Coleridge, C.J. in Mayor of Southport vs. Morris
It is urged that it is difficult to draw the line. I admit that it is extremely difficult. ... It is
always a question of degree. It may be asked, What is the difference between one cart
and two, and so on? You cannot draw the line in that way. Nothing is more common in
38 LANGUAGE AND THE LAW

life than to be unable to draw the line between two things. Who can draw the line
between plants and animals? And yet, who has any difficulty in saying that an oak tree is
a plant and not an animal?
- Lindley, M.R. in Attorney General vs. Brighton Hove Co-op. Suplly Assn.

To conclude, we can say that the difficulty of drawing line depends upon the breadth of the line. A
judge, when he has to draw a thinner line, draws it more or less arbitrarily and in due course of
time when he decides more and more cases of similar nature, the line becomes fixed by doctrine of
precedent. But this rule would be arbitrary as no rule at all, but the arbitrariness would be
announced before hand, which would facilitate the settling of cases without litigation.
Certain distinctions in law as well as outside it are both misty and unnecessary. One such
distinction is between contract of sale of goods and contract for work and materials. We, thus,
speak of buying a bottle of medicine from a chemist, but not from a doctor. Similarly, we
purchase papers from stationery shop and not from a Xerox shop.
Many times statutes lay down such arbitrary lines in the form of rules. A good example is that of
age of majority. Though such rules are arbitrary, they help us in avoiding speculations. Other
examples are from law of crimes where a child below the age of 7 years is considered to be doli
incapex (incapable of committing crime), in law of evidence where a person whose whereabouts
are not known for 7 years is presumed to be dead.
In some cases the difficulty of drawing line gives wide discretion to the judge in awarding
damages or in giving punishment. In Kiddell vs. Bernard it was argued that a horse was not
unsound within the meaning of the warranty if the unsoundness were slight. Parke, B. said, An
argument has been adduced from the slightness of the disease and facility to cure; but once we left
in considerations of that kind, where are we to draw a line? A horse may have a cold, which may
be cured in a day; or a fever, which may be cured in a week or month; and it would be difficult to
say where to stop. Of course, if the disease be slight, the unsoundness is proportionably so, and so
also ought to be the damages.
Where perfect elasticity of legal consequences is impossible, something can be done to mirror
nature by multiplying categories. Thus, the Mental Deficiency Act, 1927, subdivides the class of
mental defectives into idiots, imbeciles, feeble minded persons and moral defectives.

Class Names
Classes are sometimes divided into two sorts, natural and artificial. It is quite difficult to determine
what falls in the different classes of artificial things. In Stevens vs. Gourley, Byles, J. observed that
the imperfection of human language renders it not only difficult, but also impossible, to define
the word building with any approach of accuracy. One may say of this or that structure, this or
that is not a building; but no general definition can be given; and our lexicographers do not
attempt it.
Though lawyers are quite familiar with these difficulties in respect of artificial things, it may come
as surprise to learn that much the same puzzles are found in dealing with the so-called natural
cases.
At one time it was supposed that the natural classes exist in nature, ready made, with clear-cut
edges. But modern scientists and modern philosophers reject this view, on two counts. The first
one is a logical argument while the second one is an evolutionary argument.
Logical Argument: Class names are result of abstraction, and hence agreement upon class-names
requires agreement upon the qualities that are regarded as essential to the class. Thus, there may be
an agreement that a class is having qualities A, B, C and D. Later if a new thing is found having
LEGAL LANGUAGE AND LEGAL WRITING 39

qualities A, B and C, but not D, there will be a confusion as to whether or not the thing belongs to
this class. Thus there was confusion as to whether a black swan is a swan at all. The question is
only a verbal one. But the fact that it can be raised at all shows the artificiality of class-
distinctions.
Evolutionary Argument: Scientists believe that reality is in a state of flux. The classes that now
seem to be so fixed in nature can be traced in large measure to an undifferentiated origin. Further
we cannot be confident that the process of change has stopped. This is very clear in biology. Man
has developed from lower animals. There is no serious break between man and amoeba. At what
point backwards do we stop calling man a man? Clearly this point has to be arbitrary. This type of
difficulty arises frequently in nature. It is not that similarities and differences do not exist in
nature. They are abounding in nature. The difficulty is in drawing firm lines around or between
them. In some cases this difficulty may be insignificant. These classes may be fixed and may not
need any revision in future. But this is true only in exceptional cases.
In case of both natural and artificial classes there are certain other special difficulties.
1. Difficulty of deciding when a thing begins and ends as a member of a class. (When an egg
becomes a chick, when coal becomes cinder.)
2. Difficulty arising from impurity. (Chemist may define water rigidly, but for a layman
seawater is also water.)
3. Difficulty of saying whether a part of an individual thing is entitled to the class-name
enjoyed by the thing as a whole. (Whether anchor is a part of a vessel, so as to make a
collision with an anchor a collision with the vessel to which the anchor is attached.)
4. Difficulty of distinguishing between movable and immovable properties in law. (Which of
the heavy articles screwed down to land becomes part of the land and which one does not?)
Most of the words have
5. a central or core meaning which is fixed and does not cause any difficulty, and
6. marginal or peripheral meanings where the meaning is doubtful and causes a lot of
confusion.
Normally ordinary people are not perplexed by these troubles. A seaman is not concerned with the
problem whether anchor is or is not called part of the vessel. But for a lawyer this distinction is
very much significant, especially in case of documents because in most of the cases there is no
chance for consulting the author.
Classes and Rules of Law: There are many rules of law which refer explicitly to classes. There
are two important issues arising out of such rules:
7. Kind-degree difference
8. Quality-quantity difference
Kind-Degree Difference: One of the rules referring to classes is found in law of damages. Prior to
Re Polemis Case, the general principle was that the defendant was not responsible for a
consequence of a particular kind which was not foreseeable by him, and he was not liable in tort or
contract. But when it was shown that a man ought to have foreseen in a general way consequences
of a certain kind, he will be liable even though he could not foresee the precise course or the full
extent of the consequences of that particular kind. Thus, if one pushes another, he can foresee that
that man may be hurt, but cannot foresee that he will die. If it is held that hurt and death are the
consequences of the same kind, the defendant will be liable even though he could not have
foreseen the consequence. But, on the other hand, if it is held that hurt and death are consequences
of two different kinds, he will not be liable unless he could have foreseen the death.
40 LANGUAGE AND THE LAW

Sometimes the kind-degree difference is applied not to the ultimate consequence, but to the way in
which the harm is brought about. Thus, if a quiet horse strays and kicks a child, the owner is not
liable, because the consequence was not foreseeable. But if the same strayed horse kicks the same
child after being frightened by a boy, the owner will be liable, because the consequences are
foreseeable. The damage is the same, but there is a causal difference.
Similar rules can be quoted from different fields of law, such as transferred malice in criminal
law, the law of non est factum.
The difference between difference of degree and difference of kind is itself a difference of
degree. Difference of kind is merely a violent difference of degree.
Quality-Quantity Difference: Classic example of this difference is found in specificatio.
Specifocatio is a rule of Roman law which was largely a product of erroneous Greek philosophy.
According to the Greek every tangible thing is a combination of matter and form. This concept
gave rise to two schools of philosophy. One, represented by Aristotle and his followers, is called
Proculian School. The other one, represented by the stoics, is called the Sabinian School.
Proculians attributed more importance to the form while Sabinians attributed more importance to
the matter. In reality, these differences are merely verbal differences. But Roman lawyers took
them more seriously and thought that they have important legal consequences.
Preculians argued that a person who gave a thing a new form created a new thing and thereby
acquired ownership over that new thing, even though he did not have any ownership over the
original thing. But Sabinians denied this theory. The Proculian view gave rise to some subtlety on
the question what was a change of form, i.e., of species. In majority of cases the change involved
mere alteration of a thing in such a way as to alter its name.
English lawyers impressed by this theory adopted a similar rule of law in that ownership is lost
when the marks of ownership are lost, i.e., when the chattel became unrecognisable as the same
chattel. Later the rule was restated in a slightly philosophical form by saying that notice (the
means of recognition) is not lost as long as that which remains is the principle part of the
substance - major pars substantiae. Thus, the rule now resembled that of stoics than that of
Aristotle; if pushed far enough, it would result in a denial of change of ownership in case of
specificatio.
According to Doderidge, if a man seals barley and converts it into malt, it cannot be recovered
because it cannot be distinguished. Similarly if an ox is killed, its flesh cannot be distinguished,
and therefore, cannot be recovered, but, if the ox is found hanging by the skin, whereby it can be
recognised, it can be recovered.
We can detect 3 different strands in Doderidge's statement of law:
9. The medieval English rule that ownership is lost when thing itself cannot be recognised.
10. The Proculian rule that a thing that has been so altered as to deserve a new name becomes a
new thing capable of new ownership.
11. Some very slight tinge of an idea of fairness or public policy. A person who has worked
upon another's chattel ought to be recompensed, especially if he has acted in good faith.
Another rule that may let in the subtleties of specificatio is the rule that the destruction of a thing
can be a ground for trover, but damage to a thing is not. According to Salmond, the test of
destruction, as opposed to mere damage, is presumably the disappearance of the identity of the
article. Grapes are presumably lost when they are turned into wine, cotton when it is woven into
cloth, corn when it is ground into flour. But Glanville Williams does not agree with this view and
points out that the test of destruction is whether the defendants act has made the thing practically
worthless. He observes that to admit Salmonds suggestion would be to introduce the subtleties of
classification into the law.
LEGAL LANGUAGE AND LEGAL WRITING 41

A similar rule in the law carriage of goods by sea is that the shipowner cannot claim freight if he
does not deliver the goods contracted to be carried, but he can claim it if he does deliver them,
notwithstanding that they are in damaged condition (in both cases is liable in damages). The
question is whether the shipowner can claim freight where the goods have, in the correct phrase,
lost their identity. The test suggested by Willes, C.J. in Dakin vs. Oxley was to ascertain from
the terms of the contract, construed by mercantile usage, if any, what was thing for the carriage of
which freight was agreed, and by the aid of the jury to determine whether that thing, or any and
how much of it, has substantially arrived.
Similarly in the law of sale of goods, if there is a contract to sell peas and seller delivers beans, it
is a non-performance of contract, and there is a failure of consideration on the part of the seller.
But if the seller supplies peas, though of an inferior quality, there is no failure of consideration.
This distinction can give rise to difficult questions of law such as on a contract to sell Singar car
with sliding roof, is the delivery of Singar car with fixed roof a delivery of a different thing, and so
a quantitative failure in performance, or is a mere failure in the mode or quality of performance?
This type of questions show that the distinction between quality and quantity, like distinction
between kind and degree is one of degree.

Names Suggesting Unity


Just as classes are artificial, singleness is also artificial. There is no single factor in the nature,
and singleness is always singleness for the particular purpose we have on hand. This is shown in
three ways:
1. Every fact that we used to regard as the unity can be treated either as made up of smaller
unities or as being part of a larger unity.
2. Many such facts have uncertain boundaries and we cannot tell how much will be added or
removed without affecting the notional unity.
3. Every empirical fact that we regarded as a single fact is also, if regarded temporally, a
changing process.
For example, Nelson is a person, but:
(a) Nelson is a society of individual living cells.
(b) Nelson may lose his hand or eye, without losing his individuality.
(c) Nelson is a process. He was born by the union of two cells belonging to two other
individuals; he became a baby, a boy, a youth and a man: the physical constitution of
his body changed several times, without affecting his individuality.
This does not deny or dispute individuality of Nelson in the sense that he is different from others.
What is asserted is simply that individuality is always individuality for a purpose, or individuality
in a context.
Individuality arises from abstraction. It results from our perception of similarities of relationships
between the parts causing the individual notwithstanding differences between those parts, and of
similarities between the manifestations of the individual at the two points of time notwithstanding
differences between those manifestations. The changes in the things do not affect our notion of the
unity, and therefore, do not affect our names for them. But some changes may be so striking that
individuality, and therefore, the name changes. This gives rise to pseudo-philosophical problem of
continuation of identity, to the Roman law of specificatio, to the English law trover, etc.
This is the reason of difficulty experienced by courts in applying rules that presuppose unity, e.g.,
fixing precise temporal limits of an operation, work, or transaction; or the precise spatial
limits of a house, etc.; or in deciding when a contract is altered by a later agreement, whether it
is mere variation in terms of the previous contract, or whether it amounts to rescission of old
42 LANGUAGE AND THE LAW

contract and substitution of the new one in its place; or in deciding where the repair of a
building stops and renewal or reconstruction begins.
Decisions on questions of this sort are often unpredictable, because the court is not determining
facts but it is simply deciding upon the attitude that it wishes to adopt towards facts.

Mathematical Terms
We normally think that in mathematics we find precision. In Wakefield Local Board vs. Lele,
Grover, J. said, Except in mathematics it is difficult to frame exhaustive definitions of words;
they must be construed with reference to the subject matter to which they are applied.
Though it is true that in mathematics words are sharply defined, it does not mean that they are
easily applied to the words of experience, or the need not be construed with reference to the
subject matter.
In applying mathematical terms it is just as necessary to decide distance of degree as in applying
other words. In geometry point is a thing which has no size, a line is a row of points, therefore a
line does not have thickness. Thus they are not objects of sense and the figures constructed from
these notions are also not objects of sense.
Even if we modify these decisions to suit nature and say that points have some size and lines have
some breadth, still we will have difficulty. We cannot find a perfect straight line or perfect circle
in nature, no lines can be perfectly parallel.
Similarly a metre of cloth will not be exactly one metre. When the parties enter into an agreement
not to carry on a trade within a mile of a specified place, litigation may arise on the question
whether the mile means a mile as the crow flies or a mile by the nearest practicable road.

Words Uncertain In Their Time Reference


This is an uncertainty in the time to which words are to be applied. In interpreting a statute it is
frequently difficult to know whether the words are to be applied to a situation existing at the
passing of the Act, or a situation that arises afterwards. Similarly when an Act says that the
authority shall resell any land not required for the purposes for which it was acquired, does it
mean not immediately required, or not required in the future? There can be many more such
illustrations.

OTHER DISEASES OF LANGUAGE


Apart from fringe meaning described by Glanville Williams, there are five more defects of
language, which are called diseases of language by Reed Dickerson. They are,
1. ambiguity,
2. overvagueness,
3. overprecision,
4. overgenerality, and
5. undergenerality.

Ambiguity
When a single communication has more than one alternative meaning and each meaning is equally
appropriate, there is ambiguity. In other words, an ambiguous communication is capable of double
interpretation.
LEGAL LANGUAGE AND LEGAL WRITING 43

Usually, every word has more than one meaning. But the existence of more than one dictionary
meaning does not make the word ambiguous. Difference between a group of homonyms and an
ambiguous word must be carefully noted. Though both have more than one alternative meaning,
they are not the same. In case of homonyms, the appropriate meaning is always revealed by
context. The capacity of homonyms for sense sifting is built in and automatic. E.g. If the bear
causes any loss, the owner shall bear the cost., Can you return the can? This kind of
multiplicity of meanings which is often considered as defect is useful in as much as it makes
possible economy of symbols.
In case of ambiguity, context does not reveal the correct meaning. E.g. Residence may mean a
person's home or his domicile.
Homonyms do not present any serious and significant danger. But an ambiguous word carries the
thereat of competitive meanings which may never be desired or justified. Therefore, always care
must be taken to avoid ambiguous words like residence, and unambiguous words like domicile
must be preferred in drafting a statute.
Line of separation between homonyms and ambiguity is very thin and depends upon their
respective potentials for deception and confusion in use. Therefore it is very difficult to tell on
which side of the line a word falls. But we are not very much interested in distinguishing a word
as either a homonym or an ambiguous word. We are interested only in seeing that a word does not
cause any confusion in use. If it is likely to do so, then it is up to the draftsman
1. to use a different word,
2. to adjust the context, or
3. to add explanatory words
in order to do away with the ambiguity. Lon Fuller illustrates how even a very simple-looking
provision may have a great potential for causing confusion in use.
Let us suppose that there is a provision: It is an offence to sleep on any railway platform. One
passenger is sitting on a bench on the railway platform waiting for a delayed train. He was heard
snoring by a police officer and he as arrested. Another person had made preparations for settling
down for the night on the platform. He was arrested as soon as he lied down but before he could
go to sleep. Which of the two is guilty?
Does the word sleep refer to a single concept as is implied by the above question, or does it
represent a family of separately discernible use-patterns (a set of homonyms) such as
1. to be in an unconscious state of natural repose;
2. to spend night with the necessary arrangement for being in such a state.
If so, the question cannot be answered until it is determined which sense was intended in the
statute. Here we can choose the sense no. 2 without any difficulty, and say that the upright snorer
is not guilty under the provision. Therefore, according to Fuller recognition or selection of the
appropriate sense necessarily precedes any consideration of its standard instances or marginal
uncertainties.
In these cases we see that ambiguity arises due to multiple meanings of a word. This is called
semantic ambiguity. It is easily resolved by context. There is also another type of ambiguity called
syntactic ambiguity. It is ambiguity of modification or reference within a particular statute. Simple
instances include:
1. Squinting Modifiers
The trustees shall require him promptly to repay the loan
Here does promptly apply to require or to repay?
44 LANGUAGE AND THE LAW

2. Modifiers preceding or following a series


Charitable corporations or institutions performing educational functions
Here is charitable applicable to corporations or institutions or both? So also, is
performing educational function applicable to either or both of them?
The third type of ambiguity is contextual ambiguity. Even when the words and syntax of the
statute are unequivocal, it may still be uncertain which of the two or more alternatives was
intended. Often such ambiguity results from the conflict within the statute. When two provisions
plainly contradict each other which one is intended to prevail? Contextual ambiguities may also be
external. Provision of one statute may contradict the provision of another.
Most difficult type of contextual ambiguity and also the most frequent one is the uncertainty
whether a particular implication arises. Often this is found in case of negative implications
covered by the maxim expressio unius est exclusio alterius (expression of one thing amounts to
exclusion of others). This maxim is applicable in some cases and it is not applicable in some
others. Whether it is applicable or not depends upon context. As contexts are unique in their
particulars, it is very difficult to give a clear answer.
When we read a statute we see its details first, and then we realise its total impact. When we see
the total impact most of the ambiguities which appeared while first reading disappear
automatically. These ambiguities are apparent ambiguities rather than actual ambiguities.
Apparent ambiguities disappear by themselves whereas Actual ambiguities are resolved by judges
only, i.e. by an act of judicial law-making.

Ambiguity And Fringe Meaning


Fringe meaning and ambiguity are two quite different difficulties for the following reasons:
1. Difficulties caused by ambiguity can be normally cleared by definitions, but the difficulties
caused by fringe meaning cannot be so easily cleared. Definition can clear the difficulties
caused by fringe meaning only if it makes an express provision for the particular difficulty that
has arisen.
2. Difficulties caused by fringe meaning cannot be cured by adoption of the technical language.
Shakespeare remarked that words have grown so false that to prove a reason with them is quite
difficult. But however imperfect our symbolism may be, we must use words in reasoning, because
in general we cannot reason otherwise. In any case, words in contexts are usually clear enough for
practical purposes. Otherwise language would be useless.
One way in which context helps to give meaning to a word is in indicating the particular meaning
of the word out of its several meanings. Failure to recognise that words changed meaning
according to context leads to much idle controversy.

Overvagueness and Overprecision


Ambiguity refers to equivocation, while vagueness is uncertainty of language which arises out of
the confusion with reference to its respective application to a number of particulars. Ambiguity is
the central uncertainty, while vagueness is marginal uncertainty. A communication may be
ambiguous without being vague, and vice versa.
Most words denoting classes or categories are usually vague to some extent or more. For example
near. When do you say that a thing is near and when do you say that it is far? Further, near means
how near?
LEGAL LANGUAGE AND LEGAL WRITING 45

As with ambiguity, vagueness may be semantic or it may be contextual. Again, contextual


vagueness may be internal or external. Internally it arises when we know that a provision prevails
over the other, but cannot say to what extent.
Ambiguity is always undesirable. But vagueness is not always undesirable. On the contrary, it is
often desirable as it provides leeway to the judge deciding a case under a vague provision. It is
overvagueness which is undesirable. Through careful choice of terms and definitions and a partial
control of context the draftsman can control vagueness to the extent it is desirable, or even he can
eliminate it totally. First day of a calendar month, the present President of India are the examples
of nonvague terms.

Overgenerality and Undergenerality


A term is general when it is not limited to the unique referent but denotes more than one. Almost
every statute contains at least one general term. Sometimes it is confused with ambiguity and more
often with vagueness. It is confused with ambiguity because of the heterogeneous classes that
include different referents that need not be distinguished. E.g. grandmother includes paternal
grandmother as well as maternal grandmother. But it is not ambiguous. It is heterogeneral. It refers
to two things simultaneously (X and Y). Ambiguity refers to two things alternatively (X or Y).
Whether a term is general or ambiguous again depends upon context.
For example, A grandmother is very affectionate The term grandmother is general. His
grandmother is very affectionate. The term grandmother is ambiguous if both of his
grandmothers are living.
Generality is not a defect of language. It is a useful and indispensable tool of communication. It is
overgenerality and undergenerality which are defects.
The classes denoted by statutes should neither be broader nor narrower than necessary. Generality
is often confused with vagueness than with ambiguity. Some terms are general as well as vague.
For example, automobile. It covers all types of cars, hence general. It is uncertain whether it
covers three and two wheelers, hence vague.
Thus ambiguity and vagueness constitute uncertainties of meaning, but generality does not.
Generality serves useful purpose of granting the judges required leeway which is different from
the leeway provided by vagueness.
When a word is capable of several meanings, and selection of one or the other has impact on the
result, for an interpreter there can be only one meaning, and that is the one which gives the most
desired result.

FUNCTIONS OF WORDS
A successful lawyer must know how words work and what can be done with them. As observed
by Daniel Webster, "The power of clear statement is the great power at the bar."
According to Frank Cooper, words have three important functions:
1. Identification
2. Factual statement
3. Persuasion
46 LANGUAGE AND THE LAW

1. Identification
The prime function of words is identification, that is, to convey the author's thought as it is.
Finding a word which identifies the author's thought is not very easy. As William Cobbett
observed about two centuries ago, one does not succeed unless the word he chooses not only
expresses his meaning fully and clearly, but so expresses it as to defy the ingenuity of man to give
the word any other meaning than that which the author intended to express.
Some words are too narrow and they cover less things than what the author wanted to express.
They do not cover all things about which the author wanted to write. Some words are too wide and
cover more things than the author wished to express. They cover even those things about which
the author wanted to write. Therefore, the author will have to, sometimes, redefine the word to
give exactly that meaning, or to cover exactly that much of area, as he needs for the purpose of his
writing. Cooper gives an example of an English Act which is said to have provided: "Whenever
the word "cow" occurs in this Act it shall be construed to include horses, mules, asses, sheep and
goats." But this freedom of making the words mean what he wants them to mean is not always
available to a writer. Therefore, he has to be careful not only in selecting the words, but he must
also be careful about the meanings which may be attributed to his words by someone else.

Common Pitfalls to be Avoided


In Sweatt vs Painter, the United States Supreme Court observed that "law being an 'intensively
practical' profession, 'although higly learned', the lawyer-draftsman cannot worry long over the
impossibility of ever determining definitely and precisely the exact meaning of any word. The
lawyer can do no better than strive so to marshal his phrases that the Court will say they mean
what he wishes the Court to find as their true meaning." If the lawyer is to achieve this goal he has
to avoid certain common pitfalls. Cooper mentions three such pitfalls.
1. Multiple meaning words.
2. Context affecting meaning.
3. Abstracts defying definitions.

1. Multiple Meaning Words: The most common example of uncertain identification is that
where a word of multiple meaning is used, the author intends one meaning, but fails to make it
clear that he intended only that one meaning.
In Norman vs. Century Athletic Club, Inc., a lease provided that the lessee should enjoy "the
privilege of broadcasting the boxing bouts" staged in a gymnasium which he had rented. The lease
was executed in 1943. Five years later, the lessee got an attractive opportunity to televise the
boxing shows. The lessor insisted that the lessee's contractual right to "broadcast" the boxing
shows did not include broadcasting by television.
Was it the mistake of the advocates who drafted the contract? Should they have foreseen that
within a few years there will be broadcasting on television? Even otherwise, should they have used
clear words such as:
(a) "A.M. radio broadcasting" (restrictive language), or
(b) "any type of broadcasting, by radio or otherwise" (expansive language)?
Similar situations arise in interpretation of laws. In Otto Milk Co. vs. Washington, the definition
of "bottle" was at issue. The ordinance in question required that milk be sold in bottles. The Milk
Company sold milk in fibre-board containers, which were not bottles according to the City. In
over-ruling this contention, the court observed, "The fact that to most people nowadays the word
'bottle' may convey the idea of a container made of glass is not decisive of the question before us.
LEGAL LANGUAGE AND LEGAL WRITING 47

Bottles were among the first things used by primitive man. They were in common use long before
men knew how to make glass bottles."
The contention of the City was that fibre-board containers could not be sterilised as thoroughly as
glass bottles. Therefore, it insisted that ,ilk should be sold in bottles made either of glass or some
other substance equally capable of sterilization by methods similar to those used in sterilizing
glass bottles.
How should the ordinance have been drafted? Should it have referred to "glass bottles"? or "glass
or plastic bottles"? or "sterile containers"? or "bottles made of glass or other material which will
withstand sterilization by hot steam"?
Another common problem of definition involves the use of synonyms "between" and "among".
Where a testator leaves his property to be divided equally between a child and the several children
of a deceased child. For example, "the estate shall be divided equally between my daughter and
the four children of my deceased son." In such a case, does the daughter get a half share, and each
of the grand children an eighth? Or do the daughter and the four grand children get an equal one-
fifth?
To avoid the confusion how should the will be drafted? Should the advocate use the legalistic "per
capita" or "per stirpes"? Or should it be written that "My daughter to receive ..., and the four
children of my deceased son to receive ...."?
2. Context Affects Meaning: I.A. Richards long ago suggested that the meaning of a word is the
missing part of its context. A good example is provided by F.A. Philbrick in his book Language
and the Law: When a boy first reads in an advertisement that something is the acme of perfection,
it is easy for him to guess that acme means summit, since that meaning is the only one that makes
sense of the context.
The reverse is also true. Context affects meaning.
Context may be either internal to the message or it may be external. Internal context is the context
created by the message itself. This context normally helps us to choose the appropriate meaning
from amongst the multiple meanings of a word. For example, the meaning of the word affair may
not be clear in isolation. But when it is used in the following sentences, it becomes clear:
(a) He is a man of affairs.
(b) The divorcee had an affair.
(c) Affairs of State.
Similarly, the meaning of the word is affected by the context in which it is read. This context is
external to the message. Thus, the word "commerce" may refer simply to trade and business. But
in certain contexts, the word will be taken as refering to interstate commerce, the adjective
"interstate" being supplied or suggested by the context
The author has a control over the internal context, but he cannot control the external context. He
can only take the note of the external context and use words which may be properly understood in
that context. If the document is read in some other context, there is still a possibility of
misunderstanding the meaning of the words. Frequently, it is possible to create a strong internal
context to guard the meaning of the message against the influence of the external context.
3. Abstractions Defy Definitions: Lawyers cannot avoid abstract terms such as good, sufficient,
justice, freedom, law, right, duty, due process, unreasonable, unfair, diligent, etc. They are a
necessary part of legal drafting. They are useful in some cases. But in legal drafting they cause
more problems than relief.
Abstract terms do not have a definite meaning. As F.A. Philbrick observed, "an abstract word has
no correct meaning, never had one, and in the nature of the things never can have one."
48 LANGUAGE AND THE LAW

Therefore, it is always possible that when the lawyer uses an abstract term in one sense, the reader
may understand it in a different sense. Therefore, the best way is to try to avoid the use of abstract
terms. But it may not be always possible to avoid the use of abstract terms. However, it is certainly
possible to minimise their use.

Fallacies in Relation to the Function of Words


In additions to the above three pitfalls, there are two fallacies in relation to the function of words:
1. That words by themselves are important.
2. That real distinctions exist between two forms of words.
1. Words Themselves Are Important: One of the errors in relation to the function of words is
the idea that words are somehow important of themselves, and irrespective of their symbolic
function. This tendency to attach importance to words as such is not recent one. In the beginning
the fallacy took the form of word superstition, and later the form of word fetishism.
Word superstition was prevalent even in prehistoric days. It was the tendency to identify words
with things, and suppose that words are in some way parts of things or always imply things
corresponding to them. Another similar supposition is that words have immediate power over
things. Among primitive peoples these ideas resulted in many forms of word-magic and word-
taboos. Names, for example, are regarded as part of the personality. Hence among some primitives
a child is not regarded as complete until he has got a name. The name of a deceased ancestor is
given to the child, and the name is regarded as the soul of that ancestor. In some other
communities, however, the name of a dead man is a taboo, and they refrain from applying it to any
person out of fear of death. Another widely held belief is that by means of the name injury may be
done to a man. What is true of the names of the human beings is equally true of the names of
animals and things. One avoids speaking of snakes and leopards, etc., because of the fear that by
pronouncing their names their presence can be invoked.
The same superstitions continued to some extent in the earlier civilizations. This was found, for
example, in the elaborate curses pronounced by the priests in Deuteronomy upon anyone who
committed breach of law.
Glanville Williams quotes an even more recent example. In 1521 the title of Fidei Defensor was
conferred by Pope Leo X upon King Henry VIII. But when the quarrel with Rome was in full
swing, Pope Leo's successor deprived Henry of the title. Henry retaliated by procuring the passing
of the "Act for the Ratification of the King's Majesty's Stile". This Act was repealed by a statute
passed under Philip and Mary, but was restored under Elizabeth. All this controversy centred on a
mere empty form of words. Whether King Henry was a Defender of Faith depended upon what
one meant by "Faith". If he was a Defender of Faith, no amount of denial by Pope could alter the
fact, and if he was not, no Act of Parliament could make him one. But the parties to this dispute
were not using words to convey the meaning; they were using them as if they were of importance
in themselves.
Even the recent statutes fostered word fetishism. The imaginary offence of witchcraft, for
example, was at one time a felony punishable with death. The belief in the existence of witchcraft
was partly due to the belief that evil effects could be produced by words. The crime of blasphemy
was also originally based on the same kind of logo-phobia as the primitive taboo, and the God was
supposed to be personally offended by the desecration of his name.
Today, we can quote the example of bigamy for the law based on word fetishism. According to
Kenny, the reason for punishing bigamy is "its involving an outrage upon public decency by the
profanation of a solemn ceremony". Let us suppose that A deserts his wife and lives with an
unmarried lady, he is not committing any offence. But if he tries to make the position appear more
LEGAL LANGUAGE AND LEGAL WRITING 49

regular by going through a form of marriage with his mistress, then, even though the law is totally
null and void, he is liable for offence. Thus even though the law does not recognise this marriage,
law punishes the parties for celebrating it. The crime of bigamy, as it stands now, does not make
any sense except on the supposition that the marriage ceremony is a magic form of words that has
to be protected from profanation at almost any cost in human suffering.
2. Real Distinctions Exist Between Two Forms of Words: The second error in relation to the
function of words is the supposition that real distinctions exist where in fact the only distinction is
between two forms of words. Judges have said more than once that "there is no magic in words".
But unfortunately this is not the case. In Dean vs. Dean, Chitty, J. admitted that "a difference in
the mere form of words does in several cases make a difference in law." Glanville Williams gives
six examples.
1. A gives a loan to B which is to be repaid in equal monthly instalments. The agreed rate of
interest is 15% p.a. Each instalment must be paid on or before 10th of every month, failing
which, the rate of interest for that month will be calculated at 18% p.a. This amounts to a
penalty and therefore bad in the eye of law. Therefore, even if B pays the instalment after
10th the rate of interest for that month will be 15% p.a. only.
Therefore, A's advocate drafts the agreement in a slightly different fashion. Accordingly, A
gives a loan to B which is to be repaid in equal monthly instalments. The agreed rate of
interest is 16% p.a. Each instalment must be paid at any time during the month. But, if the
instalment is paid on or before 10th of every month, the rate of interest for that month will
be calculated at 15% p.a. This amounts to an incentive and therefore not bad in the eye of
law.
Thus it can be seen that in both cases the situation is the same. B has to pay the instalment
on or before 10th of every month. If he does, the rate of interest for that month will be 15%
p.a., If he delays the payment of the instalment beyond the 10th of the month, for that
month the rate of interest will be calculated at 18%n p.a. The difference between the tow
agreements is only a verbal difference, but it makes a lot of difference as far as the legal
consequences are concerned.
2. Distinction between "but if" and "until" is well known.
A gives a property to B, an unmarried man. B can enjoy the property free of any rent, but if
B marries the property will go to C. The condition subsequent is invalid as it is a restraint
on marriage., which is against public policy. Therefore, B accepts the property absolutely.
Therefore, A's Advocate drafts the agreement in a slightly different form again. A gives the
property to B to be enjoyed by him free of rent until he is unmarried, and after his marriage
the property goes to C. Here the condition subsequent does not put any restrain on
marriage, and therefore, is not against public policy. Therefore, it is valid.
Again it can be seen that the difference between the two agreements is only a verbal
difference. There is no difference as far as the situation is concerned. Still the legal
consequences of the two agreements are different.
3. A covenant to pay an annuity of 1,000 free of income tax is illegal by the terms of
English Income Tax Act, but a covenant to pay such a sum as, after deducting income tax
would leave 1,000, is perfectly good.
4. If A agrees to give whole of his time to the service of B, this necessarily means that he will
not serve anybody else during the period of his employment with B. But if A enters into
service of anybody else, no injunction will be granted against him to prevent him from
doing so.
50 LANGUAGE AND THE LAW

If, however, A had expressly agreed totidem verbis not to serve anybody else, an injunction
will be granted to prevent him from doing so.
5. It would appear at the first sight that there is no difference between a tenancy at Rs. 6,000 a
year payable monthly and a tenancy at Rs. Rs. 500 per month. But the period of notice
required to be given in the first case is at least 6 months, while in the second case it is only
15 days.
6. If A makes a gift of two things to B, one of which is beneficial to B and the other onerous,
B should either accept both or reject both. But if A makes two gifts of the same things, B
may accept the one which is beneficial to him and reject the other which is onerous.
James Mackay mentions a third fallacy, that there is an intimate association between words and
their meanings, and he calls this fallacy of meaning.
The idea that there is an intimate association between words and their meanings is useful, but
leads to unconscious habits of mind which seriously interfere with reasoning process. Evidence
indicates that it engenders a tacit assumption that the connection between words and their
meanings is more important than the connection between an arbitrary symbol and the thing which
it symbolises.
Words do not have inherent meanings. Words are entirely arbitrary marks of meanings. They are
conventions adopted by men for convenience, and have no "natural" or "proper" meanings.
Glanville Williams agrees with this statement and says that scientifically speaking, words have no
true or proper meaning, except in two senses:
1. Words have an ordinary, i.e., commonly accepted, meaning.
2. The particular person who uses the word may assign it a special meaning. The proper
meaning of the word for this purpose is then his assigned meaning.
The assumption of natural meanings leads to the assumption that a definition which is not natural
is not right, that is is incorrect or untrue, and therefore, must be rejected. For example, consider the
proposition, "A circle is a rectangle". Anyone who is acquainted with the customary meanings of
the terms in this proposition would not hesitate to pronounce it untrue. This is because, he
interprets it as a material proposition instead of interpreting it as a definitive proposition. In other
words, he interprets it as a statement about the customary meanings of the words "rectangle" and
"circle". It is assumed as a statement that "the customary meanings of 'rectangle' and 'circle' are the
same". Thus interpreted, the proposition is untrue. But if it is a stipulated definitive proposition, a
proposition involving not two, but only one meaning, and expressible as "a circle means a
rectangle".
Reed Dickerson observes that an inadequate grasp of the semantic aspect of semiotic may
encourage reliance on word peeling or on word history or source to get at meaning. Although
these approaches are often helpful, they are seldom determinative.
Composite terms tend to confuse persons who know only the respective meanings of their
constituent words. This often lures the reader into "word peeling". For example, "Havana cigars"
does not refer to cigars from Havana. In some cases, disregarding this fact leads to the mistaken
conclusion that because the constituent words seem to refer to something that we know does not
exist, the term taken as a whole refers to something that does not exist. Dickerson calls this "there-
is-no-such-thing-as" fallacy.
Wade argues that negligence per se, which is often negligence in fact and sometimes negligence in
law, is always negligence. Dickerson abserves that Wade has apparently fallen into the verbal trap
unintentionally laid by Ehrenzweig, who recognised negligence without fault as a risk distribution
device amounting to strict liability. This exposition makes us feel that Ehrenzweig classifies no
fault liability as negligence. But, in fact, Ehrenzweig is careful to enclose the word negligence in
LEGAL LANGUAGE AND LEGAL WRITING 51

quotation marks when using it to denote strict liability masquerading as negligence, thus making it
clear that in his judgment usage still identifies negligence with culpability. In any case, negligence
without fault and negligence per se are not necessarily kinds of negligence in the normal
culpability sense.
Similar mistake is committed in respect of single words such as "peanuts". Peanut is not a nut but
a vegetable. Likewise paying too casual attention to prefixes and suffixes leads easily the false
assumption that "inflammable" is an antonym of "flammable", whereas, common usage has made
them synonyms.
It is equally risky to get current meanings relying on etymology. Thus, though "matriel" used to
be merely the French equivalent of "material", American military usage of "matriel" has
identified it with equipment for military use. Therefore, it is not translated in military law not as
"material" but as "war material".
William P. Alston discusses about the linguistic phenomenon which he calls "dead metaphor".
This is the capacity of language for figurative uses. The language is full of senses of terms which
have developed out of metaphorical uses of words. For example, "fork in the road", "leg of table",
"leaf of a book", "stem of a glass" and "eye lids". In the present state of language, the word "fork"
has a meaning in this phrase which is as established as its meaning in the phrase "knife and fork".
But we can all imagine that at an earlier time when the word was regularly applied to the eating
and cooking implement, people would use the word metaphorically in speaking of a place in
which a road is divided into two parts, each of which continues in roughly same direction but
making an acute angle with the line of direction of the original road. This use then caught on and
the later generations learnt the meaning of the term "fork in the road" directly without having to go
through the older use of the term "fork". Thus the sense became established and autonomous.

2. Factual Statement
It is often assumed that it is easy to write a "plain statement" of the "simple facts" of a case, so as
to give unvarnished truth concerning a given situation.
Even if we disregard the difficulty in ascertaining the true facts of a case, there is always the
difficulty of language of choosing words which will create in the reader's mind the same mental
image which exists in the mind of the draftsman. Otherwise, the reader will be thinking about
quite different facts than the draftsman has in mind. Schopenhauer observed in his Essay On Style
that thought observes law of gravity in that it travels from head to paper much more easily than
from paper to head.
The "facts" an advocate deals with most often are not scientific facts. They involve human
relationships, abstractions and subjective concepts. In such cases the meaning intended by the
author and the meaning comprehended by the reader will often be different. The thought loses a
part of its vitality in the process of being reduced into writing. To make up for this loss, the author
must slightly overstate his concept. But how should the author judge what "margin of
misstatement" is necessary to achieve a truly accurate statement? Frank Cooper suggests that the
successful draftsman must steer a course between the "overemphasis on details" which defeats the
author's purpose and the overstatement which "disguises matters", if he is to succeed in his
purpose of creating in the mind of the reader a clear picture of the actual factual situation, seen in
the true perspective. This requires not only familiarity with language techniques, but also some
artistic ability.
The author should choose between "factual language" and "emotive language". Factual language is
concrete, exact, precise, specific, particular, expressed in quantitative statements rather than in
value judgments. Emotive language is abstract, vague, general, and expressed in value judgments
rather than quantitative statements.
52 LANGUAGE AND THE LAW

The purpose of the factual language is to create a mood that is precise, cold, realistic, critical, and
perhaps, cynical. On the their hand, the purpose of emotive language is to create feelings of
warmth, optimism, elation, hope or despair.
A legal draftsman can with benefit employ words and phrases which serve an emotive purpose.
Cooper illustrates this with three statements of the same fact made by three different authors:
1. "Delegation of virtually unlimited discretionary powers to administrative agencies renders it
substantially impossible to ascertain in advance precisely what ruling will be made in any
particular situation".
This statement carries but little meaning to the reader. It is overqualified, too precise, utterly
cold.
2. "The growth of administrative absolutism threatens a renewal of the terrors of the star
chamber."
This style is highly emotional and creates a mood. But it is so fuzzy that it does not create
any definite mental image.
3. "Suppose all business were subject, not to definite laws but to government supervision!
Suppose every businessman had a policeman at his elbow."
This concrete imagery, this blending of precision and emotion, is the technique to be
mastered in preparing a statement of facts which will serve its intended purpose of creating in
the mind of the reader the same picture which the writer in his mind.
The secret of drafting a statement of facts successfully has to do with making a wise choice
between cold, precise terminology and language which carries some warmth of human emotion.

3. Persuasion
Advocates speak most often to persuade. In such situation logic will not serve the purpose. Logic
is scientific, law is not. As observed by Curtis Bok, "Nothing is a science that has to depend on
words." Justice Holmes long ago declared that "the life of the law has not been logic." Cold,
mechanical, heartless logic does not persuade the courts quite often.
The successful argument must be one which makes the reader want to believe. Cold logic cannot
do this. Logic is a means of showing the reader that his preconceived ideas have been wrong. But
this is not enough. The man convinced against his will not change his opinion. Persuasion must
create a desire to believe.
One of the tools of persuasion involves the use of bias words. They are used by all, but advocates
have special use for bias words. Instead of saying that "He did not answer the letter", they say "He
failed to answer the letter". The former statement carries no suggestion of doing wrong, whereas
the latter suggests that he should have answered the letter. Similarly instead of saying that one said
something, they say one admitted something or one confessed something. A combination of these
two may result in saying the "He admitted that he failed to answer the letter."
Even the draftsman of a statute can effectively employ bias words. Thus the draftsman of the
Clayton Act chose to write that "the labor of a human being is not a commodity or article of
commerce".
We can also refer to pairs of terms, one of which is an eulogistic term, while the other a
dyslogistic term. A conservative may be described as a reactionary. A liberal man may be
described as a reformist or radical. An executive officer may be either a politician or a statesman.
LEGAL LANGUAGE AND LEGAL WRITING 53

Spies are intelligence officers. A reason may be an excuse. To be effective, this device must be
used with caution and restraint, otherwise, it will not yield the expected results.
Even greater care must be utilised in the use of adjectives to achieve an emotional mood.
Adjectives are less subtle than nouns. The author's purpose is more obvious. Still adjectives have
their uses. They can be used to create unfavourable opinions. Thus a generous person may be
called spendthrift. Similarly, they may be used to soften the harsh realities. A drafty room may be
called well ventilated.
The draftsman has a wide choice between verbs. He may say that an automobile sped, raced,
roared or hurtled down the road. Defendants have not colluded, but only co-operated. Averred is a
neutral word while alleged suggests that the facts are false.
The use of metaphors and similes to create a mood is particularly dangerous. Cooper gives the
example of the politician who warned that the workingman was being squeezed flat by inflation.

EMOTIVE FUNCTION OF WORDS


Emotive Words and Statements
The term "emotive" as used here covers not only affective but also the conative aspects of mind. It
is a blanket term for every sort of pleasure-discomfort, will and desire; for every degree of instinct,
sentiment and passion. It includes love, joy, hope, wonder, desire, reverence, obedience,
amusement, sympathy, social, moral and religious feeling, rage, fear, grief, horror, disgust, and
every other affective-volitional state.
A word is said to perform emotive function when it either expresses an affective or volitional
attitude or arouses such attitude in others. Thus an emotive word may be either an expression or an
excitant of feeling or desire.
Some specialised linguistic activities such as poetry, oratory, advertising, religion make
particularly pronounced use of emotive function of words. Emotive use of words is also found in
ordinary speech and writing. All action is ultimately inspired by emotion. Therefore, it is
inevitable that in our speech we should both express our own emotion and attempt to satisfy our
emotions by working upon the emotions of others.
One result of this aspect of language is that every statement of fact can be put in such a way as to
excite a feeling either of attraction or of repulsion, so far as language can do it. We have already
referred to bias words and to eulogistic and dyslogistic words. In addition to these there are certain
constructions particularly designed for emotive purposes. The imperative and operative moods,
and the auxiliaries "must", "may" and "ought".
A distinction must be drawn between emotive function of words and the emotive functions of the
sentences as a whole. An emotive sentence consists of both emotive words as well as words which
are not emotive. Thus, in the sentence "You are a good boy", the words "you" and "boy" are
purely referential, yet the sentence as a whole is emotive. Therefore, when we say that a sentence
is emotive sentence, it does not mean that it does not contain referential words. But, a referential
statement does not contain emotive words.
Thus, an emotive sentence is both emotive as well as referential. Thus the sentence "You are a
good boy" is referential in so far as it asserts that the person addressed is a boy, and emotive
insofar as it asserts that he is good. The statement "You are a boy" is a statement of fact, and hence
referential, and the statement "You are good" is an expression of emotion, and hence emotive.
"You are a good boy" combines these two statements. But, because the emotive element is
predominant, we say that as a whole it is an emotive statement.
54 LANGUAGE AND THE LAW

Most common type of emotive statement is the value-judgment. This is a statement of approval or
disapproval, usually in the form of a generalisation. There are three important differences between
referential statements and value-judgments.
1. Referential statements are objective, value-judgements are subjective. Therefore, value-
judgments differ from person to person while referential statements do not. Thus, as to
whether A is a boy or girl, there will not be two opinions. But as to whether A is good or bad,
there will be many opinions.
2. Referential statements purport to state past, present or future reality, while value-judgments
merely express emotional reaction to this reality.
3. The criterion of truth and falsity is applicable only to referential statements, but not to emotive
statements.
Emotions are necessary for human development and advancement. Without emotions there cannot
be desire to achieve. Similarly emotions are of the highest social importance. People should have
favourable emotions towards social conduct and should react in words as well as in action against
anti-social conduct. Emotive statements are quite useful as tools of social control.
Emotive statements may be abused in several ways. We can cite three such possibilities:
1. Emotive statements may be used in such a way as to hinder thought. Our value-judgments
should proceed in the light of knowledge of relevant facts, though they may be ultimately
governed by our particular temperament. If the use of emotive language in presenting facts
prevents the hearer or reader from examining the alleged facts, it amounts to the abuse of
emotive language.
2. Language that is highly emotive, but symbolically blank may be used as a substitute for
presentation of facts. Normally advertisements and political statements use such language.
They use what are known as "bogey words" and "catch phrases". They are imprecise in
meaning but have an important influence upon mind of the average voter. Instead of
suggesting specific remedies for specific problems, they use terms of broad generality.
3. Emotive use of words can be strategically disguised as a referential statement. We often find
that to express our emotions or value-judgments using the terminology of referential
statements is more effective than using emotive words. This tendency is endemic in works of
philosophy, sociology and jurisprudence. The most common way to disguise an emotive
statement as a referential one is to hypostatisation of values. Thus, if a moralist says that all
wrongdoers should be punished, he is only expressing his personal opinion and he may find it
difficult to persuade others. But if he asserts that "Justice requires all wrongdoers should be
punished", he may appear to be stating a fact and may be readily accepted by others.
As mentioned above, the criterion of truth and falsity is applicable only to referential
statements. Thus, if one says, "Do not steal", it is nonsense to ask whether his command is true
or false. Value-judgments do not express observable facts, and it is impossible to deduce them
from observation of facts. However, this proposition is often denied owing to some confusion.
Glanville Williams mentions three sources of such confusion:
1. A value judgment may be true in the sense that it is a genuine expression of the feeling of
the person expressing it. We have already noted that an emotive statement is not only
emotive but also symbolic. Laughter expresses happiness and is non-symbolic, but the
sentence "Now I feel happy" expresses happiness and also symbolises the mental state.
The second part may be true or false.
2. A says the B is a good boy. C who hears this agrees and says that what A said is perfectly
true. C is expressing emotional agreement with A. This is not verification of A's statement,
LEGAL LANGUAGE AND LEGAL WRITING 55

in the ordinary sense of the word "verification". It will not be verification even if ten
thousand others agree with A.
3. E. Benoit-Smullyan divides judgements into three types:
(a) Value-judgments: A value-judgment asserts that "A is good or valuable in itself". This
is without specific reference to its consequences. Other examples are "A ought to be
done" (for its own sake), "A is (intrinsically) better than B".
(b) Existential judgments: An existential judgment is of the form "A exists, did exist and
will exist", "A has property B", "A causes B".
(c) Instrumental judgments: An instrumental judgment may take the verbal form of a
value-judgment (e.g., "A is good", or "A ought to be done"), but its actual meaning is
that "A is good for B", or "A is good or valuable in that it produces B", or "A is more
likely than C to produce B". Such a judgment is the conclusion of an argument in
which one of the premises is a value-judgment and another an existential judgment.
Thus,

B is good (as an end).


A causes B.
Therefore A is good (as a means).

Here, the second premise is capable of being true or false in respect of the element of
causation, and therefore, in the same respect, is the conclusion. This dual character of
instrumental judgment may lead to the misunderstanding that they can be true or false.

Emotive Function and the Law


The emotive function of words has a three-fold importance for the lawyer. They may be described
as under:
1. Legal Euphemisms.
2. Insult.
3. Use of Words as a Stimulus.
1. Legal Euphemisms: Human nature is a curious mixture of the inflammable and the sensitive.
Words can arouse feelings of grief, repentance, insult, happiness, pride, etc. Therefore, there is a
need for moderation of language, politeness and euphemism. We are all familiar with the verbal
delicacy that has been maintained in lunacy matters. Lunacy Act, 1890 of England is always
referred to as 53 Vict. c. 5. Different laws refer to different aspect of the law in different ways.
Thus, the office of the Master of Lunacy is referred to as "The Management and Administration
Department", a lunatic is called a "patient", an asylum is "Institute for Mental Health", a criminal
lunatic is a "state mental patient", a pauper lunatic is "rate-aided patient", etc.
In criminal law, the effort to destigmatise the probation order has been carried so far that it may
cause difficulty in working of legal concepts. Sec. 1(1) of the Probation of Offenders Act (of
England) provides that "where any person is charged ... and the Court thinks that the charge is
proved, ... the Court may, without proceeding to conviction, make an order either (i) dismissing
the information or charge, or (ii) discharging the offender conditionally on his entering into a
recognizance". Thus, the provision seeks to protect the offender from being called a "convict"
even though the charge is proved against him. In Oaten vs. Auty the question was whether an
appeal can be preferred against an order of dismissal of information or charge passed under this
section. Under sec. 33 of the Summary Jurisdiction Act, 1879 an appeal may be preferred against
"conviction, order, determination or other proceeding of a Court of summary jurisdiction". As the
56 LANGUAGE AND THE LAW

order does not amount to conviction, it was held that appeal may be preferred under the
concluding words of the section, "or other proceedings".
Darling, J. criticised the wordings of the Probation of Offenders Act as "unscientific, thoroughly
illogical, and merely a concession to the modern passion for calling things what they are not".
Glanville Williams observes that this criticism is unfounded because, a deviation from established
usage is itself not unscientific or illogical. The only difficulty that was caused by the deviation in
this case was in altering the established legal concept the draftsman ran the risk of causing
difficulty in applying other rules of law that made the use of that concept. Luckily, in this case
there were alternative words to "conviction" in the Summary Jurisdiction Act which helped to
avoid injustice.
If the Act was skilfully drafted, it would read that the word "conviction" in any other Act would
include an order passed under this provision.
2. Insult: The irritant quality of words is recognised in certain rules relating to insulting language.
The prohibition of blasphemy is based on that ground. Insulting words or behaviour with intent to
provoke a breach of peace or where breach of peace is likely, are offences. On the other hand, it is
now settled law that mere words are not sufficient to reduce a charge of murder to one of culpable
homicide, except in cases of most extreme or exceptional character.
A distinction is drawn between defamation and insult or abuse. The former is a legal wrong, the
latter is not. Although this distinction seems clearly to be based on the difference between
referential and emotive language, the exact correlation is a matter of more complexity.
3. The Use of Words as a Stimulus: The emotive function of words is of vast importance in
social control. The marriage ceremony is one of the most powerfully emotive forms of words in
the society. There are titles of honour which constitute a stimulus to the socially desirable effort.
National days, ceremonies and emblems stimulate the emotion of loyalty to the established order
of the community.
This kind of use of emotional stimuli for the purpose of social control is not confined to particular
institutions. It is a characteristic of the legal system as a whole. We have already seen that
Glanville Williams maintains that legal rules are emotive statements.

The Uncertainty in the Application of Laws Due to the Use of Emotive Words
The words "right", "duty" and "wrong" have an emotive function, but since they are merely
auxiliaries for indicating that a standard of conduct is involved they do not themselves blur the
meaning of a sentence. But there are other emotive terms which express the legal standard itself,
and thus introduce an unusual amount of subjectivity into the interpretation of the rule. Examples
of such words are "just", "justice", "public policy", "necessity", etc.
The rule that a contract which is against public policy is void, tells almost nothing. Its application
depends upon what is public policy, and what is public policy and what is against public policy
depends upon the opinion of individual judge. As there are sufficient precedents now, we can, to
some extent, predict the judgments in cases involving public policy.
Similarly in case of defence of necessity in law of torts and crime, what is necessity depends upon
the facts of the case and the opinion of the judge. Again, here also we have precedents to guide us.
In the same way, the difference between some word pairs, such as, "arbitrary" and "discretionary",
"important" and "unimportant", etc. is based upon emotive aspects.
In questions of causation lawyers distinguish one cause as "the" cause of an occurrence and call it
the "direct" or "immediate" cause. These adjectives cannot be taken in their usual meanings. They
appear to mean "important". Scientifically, it is impossible to distinguish between causes merely
LEGAL LANGUAGE AND LEGAL WRITING 57

in terms of importance. Every event has several causes, and no one cause is more important than
another. However, there are a few relatively definite legal rules for determining the legal cause.
Where these rules are applicable, the question is not emotive nature but of objective fact.
The legal distinction between principal and accessory is similar to the above distinction. We may
say that a button is accessory to the shirt, because we feel that shirt is more important than button.
But, if the button is very expensive, we may regard shirt as accessory to the button. In Yousoupoff
vs. Metro-Goldwyn-Mayer (1934) Slesser L.J. held that in a sound film sound is ancillary to
vision. This may be because the silent film was invented first. Glanville Williams feels that in case
of television vision may be held as ancillary to sound.
We can quote many more such examples. "Reasonable", "unreasonable", "question of fact",
"question of law" are few of them.
It is not surprising to find that these rules involving emotional attitudes are often uncertain and
difficult to apply. This is because the emotional reaction of the lawyer who advises on their
application is not necessarily the same as that of the judge or jury who finally determines the
matter. Emotions of judge or jury are not always predictable. Still, to some extent the emotional
reactions of human beings are similar. To that extent we can predict the emotions of judges and
juries.
58 LANGUAGE AND THE LAW

SOME SELECTED WRITINGS ON LANGUAGE AND LAW


1. LAW
Law is difficult to define. It has many facets and many functions. Different people looking at law
from different angles have found it in different ways. Hence there are several schools of law, such
as the natural law school, the imperative law school, the realists, etc.
The proponents of the natural law school claim that law is the dictate of reason. According to the
natural lawyers, unreasonable law, i.e., law opposed to the nature is no law at all. According to
them, law which is against the nature is no law at all. The nature of fire is to burn. If a law is made
saying that fire shall not burn, it cannot be followed. Similarly, law which is unreasonable is no
law at all.
The proponents of analytical school of law or imparative school of law, who are also called
positivists claim that law is the command of a sovereign, backed by sanctions. According to
them the commands of soveriegn are law whether they are reasonable or not is immaterial. If these
commands are not followed, the person committing the breach will be punished.
The realists claim that whatever may be the law made by the sovereign or any other person or
body of persons, ultimately it is to be interpreted and applied by the Courts. Therefore whatever
the Courts say law is, is the law.
All these theories have their own merits and demerits. Instead of falling in the debate about these
merits and demerits we may examine different forms of law by which we are practically governed.
There are mainly three such forms:
1. Statutory law and rules made thereunder;
2. Precedents; and
3. Customs.
Statutory law, usually called Act and sometimes Code, is made by the legislature which is the
law-making body. The law-making powers of State are given to it by the Constitution. Therefore,
its law-making powers are supreme and laws made by it are the supreme legislation. However,
the legislature being busy cannot make all the laws in detail. Therefore, many times it makes the
broad law and delegates the powers to fill in the details to the executive or judiciary. Then laws
are made by the executive or judiciary as agent of the legislature. Usually they are called Rules.
They are subordinate legislation.
Judgments of higher judiciary, i.e., High Courts and Supreme Court are binding on themselves as
well as Courts subordinate to them. Therefore, they cannot deviate from them. If a case with
similar facts come before them they have to give a similar decision. This is necessary for the
certainty in law and also to give impartial justice. It is based on the principle that like cases
should be decided alike. Such judgments of the Courts are called precedents. They fill in the gaps
left by the statutory law and also interpret the statutory law wherever the statutory law is clear.
Customs are prolonged usages of the community or of a family or of even an individual. It is a
rule which in a particular family or in a particular district, has from long usage obtained the force
of law. A custom to be recognised by a Court should be:
1. ancient
2. continuous and uniform
3. reasonable
4. certain
5. compulsory and not optional
6. peaceable
7. not immoral.
LEGAL LANGUAGE AND LEGAL WRITING 59

A custom may be
1. general custom, i.e., custom common to a class of people living in a particular locality or
belonging to a particular caste or community, or
2. public custom, i.e., custom which is a matter of public interest, or
3. private custom, e.g., family customs and usages.
The statutory law being the supreme law is applied first. The rules made by the executive or
judiciary come next. Precedents of the Courts are applied in the absence of the other two types of
law or to explain the other two types of law. Wherever customs are applicable they are also
applied as if they are law. In the absence of all the above even treatises written by eminent jurists
can be cited as law.
The difficulty of defining law is beautifully put by W.H. Auden in the following piece of poem.

Law?
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as Ive told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write;
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anything, anywhere,
Law is Good-morning and Good-night.
Others say, Law is our Fate
Others say, Law is our State
Others say, others say
Law is no more
Law has gone away.
And always the loud angry crowd
Very angry and very loud
Law is WE
And always the other idiot softly ME.
Like love I say.
Like love we dont know where or why
Like love we cant compel or fly
Like love we often weep
Like love we seldom keep. - W.H. Auden
60 LANGUAGE AND THE LAW

2. IMPORTANCE OF LANGUAGE IN LAW by ISHTIAQ ABIDI

According to the author, words, spoken and written are the raw materials of the lawyers trade,
and the possession of a good linguistic style which enables him to make effective use of that
material is one of the most valuable of all his professional equipments. There is no doubt that this
is not an understatement. Several authors have, time and again, expressed this same view in
different manners. Dr. V.S. Rekhi, in his preface to Abidis book observes that language is the life
of law, as law is based upon inter-personal relations, the essence of which is communication. Law
is expressed through language and it is practised through language.
Frank Cooper says that language is lawyers sole tool. In every profession there is use of one tool
or the other, and persons belonging to different professions acquire skill and expertise in the use of
the tools of their profession. Language is the sole tool used in the legal profession. But, Frank
Cooper laments, few lawyers attempt to achieve mastery over language. Abidi expresses his
confidence that even where such a style is not a natural gift, it may be acquired by study and by
practice. The author further states that there are few higher intellectual pleasures than success in
the task of expressing an argument or a conclusion in just precisely the right language, so that the
thought is caught and poised exactly as we would have it.
But the question is which language should we master? This is especially an important questions in
countries like India where there are many languages, several of which are officially recognised
and used. In lower Courts Kannada is the language in which cases may be conducted, but still
English is being used commonly. At higher levels of judiciary the cases are conducted invariably
in English. Thus, those who wish to practise before High Courts and the Supreme Court, must gain
expertise in English language. However, this does not mean that those who wish to practice before
the mofussil courts can ignore English. There are at least two reasons for them to master English.
One, if their English is weak, the opponent lawyer may take advantage of it by conducting the case
in English. The other reason is that the law reporters are published in English, and reading
reported cases and understanding them is the essential part of an advocates profession, in
whichever courts he may practise.
There are certain components of study of language which are common for all languages. Certain
other components differ from language to language. Language has not only linguistic, but also
psychological, logical and philosophical aspects. These aspects are more or less the same for all
languages. Similarly, the meaning of a statement depends upon not only the words used in that
statement and the order in which the words are used, but also on the context in which the
statement is made. This aspect is also the same for all languages. If we master these aspects for
one language, we have mastered them for all. But there may be other aspects of language, like
vocabulary and grammar, which are language specific. They are to be studied separately for
different languages.
Therefore, in the opinion of the author, a student of law must acquire mastery over English.
The next question is what are the requirements of the profession and what aspects of the study of
language should be stressed upon? Abidi advises the students to have a firm grip over the English
language, i.e., its vocabulary and grammar, with an aroused concern for the likely constructions
that can be put upon by their adversaries if they attempt expressions other than the established
ones. Therefore, the author advises the students to have:
1. a special, fairly wide vocabulary;
2. a good command over structures and syntactical patterns,
3. an awareness of likely implications emanating from different expressions for conveying
the same intent.
LEGAL LANGUAGE AND LEGAL WRITING 61

Certain words are commonly used by all, lawyers and laymen alike. These words are to be learnt
from a professor of English. Certain other words are technical in nature. They are to be explained
in depth by the professors of different branches of law with reference to the definitions given in
concerned statutes and to the interpretations made by different Courts in different cases.
Sometimes common words carry special meanings in law. Though we cannot not call them
technical terms still their use is technical in nature. They are to be learnt by the students of law
with special care while studying different laws from different professors, and now, from the
professor of Legal Language. Abidi has suggested a vocabulary of such words which he hopes to
serve as a lawyers stock-in-trade. He suggests that this vocabulary must be firmly rooted in the
minds of the students and practitioners of law, as it is by far their greatest need.
According to Abidi, as for the tense structures, the laws may be divided into two broad categories:
1. those which create rights and also provide a remedy in case those rights are injured, i.e.,
substantive laws; and
2. those which state fundamental principles or lay down procedures, i.e., procedural laws.
In the case of the former, by the time matter comes up for hearing, it becomes an event of the past.
Consequently, most of the things connected with it have to be presented in the past tense forms.
So, simple past, past perfect, past continuous and used + infinitive forms become the most
important and most frequently used ones. With the latter, the simple present, neutral present and
passive forms are the most common ones. Future forms are least frequent; the most common in
this category is the jussive (commanding) future with shall. In addition to these, according to
Abidi, a thorough command over the uses of may, shall, can, could, will, would and should is also
necessary.
Abidi reminds us that most of the legal communication constrains, of necessity, sentences with
many conditions.
Further, in law, choice of words is very important. A lawyer is a trafficker in words. A slight
negligence or error in the construction of clauses or in the use of appropriate words may lead him
and his clients into difficulties. Hair-splitting controversies about such simple words as may, shall,
and, or, family, accident, etc. or, for that matter, legal wrangling about any crucial word or phrase
used in any statute should, instead of frightening a beginner in legal studies, stir up in him a desire
to master the tool of the language. A comparative study of quite a few synonyms which are
frequently used in legal contexts is a good exercise. A comparative study of words given in the
Law Lexicons is a useful guide in this regard. Such a study will show us how even very simple
words can be extended to mean something very different.
One cannot give a complete and exhaustive list of such words. With the hair-splitting advocate
ever ready to challenge and twist the interpretation or the meaning advanced by the opposite party,
drawing such a comprehensive list is not possible.
A student of law also needs, a lot of practice in such skills as prcis-writing, preparation of briefs,
writing of reports and drafting of various types of formal applications and petitions.
To acquire these skills, a student of law should read pieces of good writing, both legal and
otherwise. Reading articles of law and reports of judgments of superior courts is very useful. This
helps one to have mastery both on law as well as language.
Abidi admits that despite our best efforts and intentions, some of the ambiguities and uncertainties
in the domain of legal language itself is an ever-changing medium. There is hardly any word in
any dictionary which carries a single, precise and definite meaning. On the other hand, there are
not enough words in any dictionary which can answer the infinite diversities of the human
situations with which law has to deal. However, as Abidi points out, much of the ambiguities can
62 LANGUAGE AND THE LAW

be avoided if the slipshodness in the use of language is avoided, and if proper emphasis is laid on
precision in expression and clarity of intent.
Abidi says that it is a challenge and it should be taken up.

3. LAW AND LANGUAGE by LORD MACMILLAN

Lord Macmillan describes a lawyer as a trafficker in words, because, to the legal profession above
all others, words and their meanings are a matter of supreme concern. They are his staple, his
stock-in-trade, and the annual turn-over of the profession must far outstrip the almost astronomical
figures of the bankers Clearing House. Lawyer is using words all day and every day. In all
aspects of his practice, whether he is drafting a deed or agreement, or a pleading, or whether he is
advising a client about his affairs, whether he is arguing a case, or whether he is writing a
judgment or opinion, a lawyer is constantly making use of words, written or spoken, and thereby
constantly endeavouring by the use of words to convey their meaning to others.
The question is not whether the service rendered to the community by dealers in words is as
valuable as that which is rendered by those who follow the more creative callings like engineering,
architecture, etc. He reminds that words are the daughters of earth, things are sons of heaven.
Nature created the things, and to refer to them man created the words. A lawyer is not concerned
with the words themselves or their origin, because, as Vice-Chancellor Kindersley points out that
such a study does not help in the administration of justice. Such a study is the concern of
etymologists, and to some extent of literary artists. What is of utmost importance for the lawyer, if
he is to perform adequately his duty to his clients and to the public, is that he should possess a
special skill in the use of language. For the lawyer the importance of words lies in the fact that
they are the vehicles of the law.
Whether it be statutes, reports, and text books where the law is in static form, or the pleadings,
arguments or judgments where the law is in dynamic form, it is the words which must be used to
express the law. For the formulation, the exposition and the application of law, the only medium is
language, and success or failure in these endeavours is dependent on the skill and precision with
which the lawyer handles his medium.
However, as Lord Macmillan observes, so little conscious and systematic study is made by the
lawyers in respect of the right use of language in the modern times. He points out that it was
otherwise in the classical times. In Greece and Rome much time and much thought were devoted
to the technique of words, and the schools of the grammarians were the training grounds of the
lawyer. Lord Macmillan observes that we can still learn much from the precepts of the Attic
orators and the treatises of Cicero and Quintilian.
Lord Macmillan states that the art of words is a difficult art and a fine art, and that the practice of
it brings pleasure as well as profit. For a lawyer, the aesthetic aspect of language is not of primary
interest, though as Sir Frederick Pollock rightly points out that not even the draftsman of an
ordinary lease can produce really good work unless he has a share of artistic feeling in the
eminent sense, and takes a certain artistic pride in the quality of his workmanship apart from the
reward he will get for it. It is rather the utilitarian and practical side of the art which is important
for a lawyer. It is not just a theoretical matter, but one of business. No experienced lawyer can
ignore the importance of accuracy and precision in the record of his transactions, and the
expression of his arguments, or fail to recognise how indispensable it is to appreciate the exact
meaning of the words he uses.
The greatest difficulty a lawyer experiences in the use of words arises from the fact that of all the
things words are the most uncertain and ambiguous. Indeed, such is the imperfection of the human
vocabulary that hardly any word has a precise and definite meaning except the terms used in
LEGAL LANGUAGE AND LEGAL WRITING 63

mathematics and physical sciences. The difficulty is even more pronounced in case of law because
of the nature of the subject matter. Law is mainly concerned with the human relationships, which
are themselves highly complex and infinitely diverse. On the other hand, the resources of language
are very much limited. Hence, as Lord Macmillan points out, the paradox presents itself that the
science whose main object is the achievement of order is most open to the accusation of
indefiniteness and uncertainty in its pronouncements.
Lord Macmillan further observes that an inefficient craftsman quarrels with his tools, while an
efficient craftsman tries to master them. As Locke says in his Epistle to the Reader, I know that
there are not words enough in any language to answer all the variety of ideas that enter into mens
discourse and reasoning. But this hinders not but that when anyone uses any term he may have in
his mind a determined idea which he makes in the sign of and to which he should keep it steadily
annexed during that present discourse. Where he does not or cannot do this he in vain pretends to
clear or distinct ideas; it is plain his are not so; and, therefore, there can be expected nothing but
obscurity and confusion where such terms are made use of which have not such a precise
determination. Though this statement is made in respect of mankind in general, it has a very
special application to the lawyer. One can see that at least half the litigations in the Courts
originate from the ambiguous use of language. Many of these controversies over words are due to
the inherent defects of the instruments some of which cannot be entirely eliminated even by the
most skilful, while many others which arise from perfectly avoidable slipshoddiness and want of
precision in thought and expression.
Lord Macmillan makes a cursory reference to the word fetishism among the lawyers, as he feels
that a detailed discussion is out of the scope of his article. Among the primitives this fallacy takes
the form of word superstition. It is believed that words have magical powers. In case of law word
fetishism takes the form of words of style. To illustrate this, Lord Macmillan quotes the example
of a Scottish case, viz., the case of Kirkpatricks Trustees vs. Kirkpatrick. In that case Mrs.
Kirkpatrick executed a trust on 4-3-1867. The trust deed had a dispositive clause which read, ... I
give, grant, assign, convey and make over ... but did not mention I dispone. Because of the
absence of the words I dispone the Court held that the deed was ineffectual to convey her
heritable property. Thereafter the Parliament enacted the Conveyancing (Scotland) Act of 1874, in
which sec. 27 provides, It shall not be competent to object coming into operation after the
passing of this Act on the ground that it does not contain the word dispone, provided it contains
any other word or words importing conveyance or transference or present intention to convey or
transfer. In India, the Courts take into consideration the effect of the words and do not go by the
particular words used in a deed or document. However, one should remember that though for
normal purposes we consider many words as synonyms to each other, meanings of different words
are always different. In fact, according to a renowned authority on English language, there are
only two pairs of synonyms in English. Therefore, substitution of one word by another may result
in difference in meaning. Substituting one standard word by another word without ascertaining the
difference in meaning and the legal effect thereof is always dangerous. As Lord Macmillan
observes, the requirement that prescribed words and formulas must be used to achieve certain
legal results cannot be dismissed as mere word fetishism. He says that it had a purpose. If one uses
the established words and formulas, no dispute can normally arise in respect of their meaning and
therefore of their legal effect. As observed by Lord Cockburn, Words acquire the character of
being words of style solely because, from their expressing a thought necessary or usual for the
occasion they can never be safely omitted. It is commonplace among the lawyers that most of the
litigations arise from words. The great part of a lawyers daily business is to give opinions, to
argue or to decide as to the meanings of words. These disputes are by no means always barren
logomachies. Great questions of principle may turn upon a word and valuable rights and interests
depend upon the meaning assigned to it. The difficulty of interpretation arises, as I have said, form
the imperfection and inexactitude of language as vehicles of ideas. If words are the currency of our
business, they suffer from the defects which have always affected human currency.
64 LANGUAGE AND THE LAW

Their value in exchange is unstable, and they not only undergo changes in time and place, but at
any one moment and place their precise content is often undeterminable. To illustrate this, Lord
Macmillan quotes the example of the famous case of Powell vs. Kempton Park Race Course Co.
Ltd. where the controversy related to the meaning of a place opened, kept or used for the
purposes prohibited by the Betting Act, 1853. The locality (not place) under discussion was a
railed-in-enclosure adjoining a race course, to which enclosure public were admitted on payment
of an entrance fee and to which bookmakers resorted for the purpose of their business. Lord James
of Hereford said, There must be a definite area so marked out that it can be found and recognised
as the place where the business is carried on and wherein the better can be found. Thus, if a
person betted on the Salisbury Plain there would be no place within the Act. The whole of the
Epsom Downs or any other race course where betting takes place would not constitute a place; but
directly a definite localisation of the business of betting is affected. Be it under a tent or even
movable umbrella, it may be well held that a place exists for the purposes of conviction under
the Act. Therefore, according to Lord James, the enclosure in question might, physically
speaking, under certain conditions constitute a place, but even if so, he held that it was not opened,
kept or used for the purpose of owners, occupiers, or users of it betting with persons resorting
thereto. Many such examples of uncertainties in the meaning of words can be given.
Indiscriminate use of and and or or may and shall have almost legal literatures of their own.
Thus, every day we see the courts engaged in elucidating the meaning of the English language. As
the ambit of legislature is increasing, we may expect such problems to increase, rather than to
diminish in number. Lord Macmillan says that the increasing intervention of Parliament in the
lives of the people by means of imperfectly framed statutes will, at any rate, save many lawyers
from swelling the ranks of the unemployed.
Though the task of drafting statutes is entrusted these days to the skilled draftsmen, Lord
Macmillan feels that the burden upon them is so much more than they can take, and therefore, they
fail quite often to use appropriate words to express their ideas. Further, the task of a legislative
draftsman in itself is a highly complicated one. Lord Macmillan gives example of a simple Club
Rule which is applicable to the members family. What is the meaning of family? Does it include
only the wife and children of the member or does it include every person who resided with him
under the same roof? Does it include his brothers and sisters and also his grand parents? As Justice
Stephen has observed, It is not enough to attain a degree of precision which a person reading in
good faith can understand; but it is necessary to attain, if possible, to a degree of precision which a
person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to
misunderstand it. Performing the task in a very much limited time makes it much more difficult.
Lord Macmillan says that one of the chief functions of our Courts is to act as an animated and
authoritative dictionary. It is the Courts who have to interpret a statute or a contract and tell us
what they mean. In other words, words used by one set of persons have to be interpreted by
another set of persons. This is another very difficult task. A testator who has left his books to a
public library cannot be asked what he meant by the word books. It is much more difficult in
case of a statute. First, because the legislators who enacted it cannot be found easily. Even if they
can be found, they being a group of persons, cannot have a common intent.
The author makes an attempt to impress upon the minds of the students of law the importance of
using proper language and also tries to warn them about the difficulties and pitfalls.

4. LANGUAGE: LEGAL AND LITERARY by JOHN MASON BROWN

The author compares the two professions which are based upon the use of words, namely, law and
literature. The persons belonging to these professions are called word-men by the author.
LEGAL LANGUAGE AND LEGAL WRITING 65

In the course of this article, the author asserts the importance of originality in writing. He makes
reference to ghost-writers, the persons who write on behalf of others. He quotes A. Whitney
Griswold who in a speech at the National Booksellers Association expressed shock and dismay at
the news that in Washington a University was about to open a course for ghost-writers to teach
them to write in such a way that orators will understand at all times what they are saying. He
points out that at the time of writing of this article there were about 150 top level ghost writers in
Washington alone and that most of them had a hard time adjusting their talents to fit the mental
and oratoral capacities of the men for whom they write. The author observes that speaking words
that others have written, having a voice but no style of ones own may be a necessary practice for
over-worked officials. But one thing it is not - and that is authorship. An authors style is his
written voice; his spirit and mind caught in ink. The author quotes the example of Sir Winston
Churchill, who despite the immense pressure of work never failed to make himself heard in print.
Though he might have derived most of the information from his officials, the author points out
that what was suggested to Sir Churchill was possessed by him, and that as possession is nine-
tenths of ownership, possession in terms of ones own very personal usage of language is ten-
tenths of authorship.
The author, himself an acclaimed critic, then compares lawyers with critics, and finds that they
have more things in common than their addiction to words. He says that they both have detractors,
if not enemies, men and women who, oddly enough, do not dote on them and have attacked them
with eloquence. By way of example, the author cites one or two criticisms against the lawyers. He
says that some of the critics feel the gift of lawyers for obfuscation is such that Prince Hal must
have had lawyers, rather than Falstaff, in mind when he said, How now, my sweet creature of
bombast? He also quotes Sir Richard Burton in The Anatomy of Melancholy where he says, Our
wrangling lawyers ... are so litigious and busy here on earth that I think they will plead their
clients hereafter, - some of them in hell. The author regrets to say that the picture of the law most
securely hung in the minds of many people is a faltering likeness. The author painfully refers to
the symbols Charles Dickens chose for law and its processes - fog and gas. Fog everywhere, fog
up the river fog down the river - gas looming through the fog in diverse streets - never can there
come fog too thick, never can there come mud and mire to deep as some score of members of the
High Court of Chancery are mistily engaged in one of the ten thousand stages of an endless cause,
tripping one another up on slippery precedents, groping knee-deep in technicalities and making a
pretence of equity with serious faces, as players might. The author says that that is a popular
conception of the law held both by the laws victims and the clients of lawyers, if a distinction
from the laymans point of view can be made between the two. Like the reputation of Shakespeare
and Shaw, this notion of law is built fast and solid, as Shaw describes his own reputation. Dr.
Johnson thinks otherwise and says to Boswell, It is unjust Sir, to censure lawyers for multiplying
words when they argue; it is often necessary for them to multiply words. The author observes that
even the authors have been guilty of the same indulgence, especially when paid space and rates,
when they are tempted to set down thousands of words which could easily have been omitted.
The author points out that words are used by everyone, but all cannot be called word-men. A letter
written by a businessman cannot be called a piece of literature. The same is true of the hundreds of
notice boards and sign boards we everyday see. The author distinguishes between the
communication on the law level of utility and communication which is raised to literature. He
hastens to state that one should not conclude that the communication on the low level of utility is
insignificant. Only things is that they have only utility but no creativity. Most of what we read in
newspapers, magazines or books is such mere hackwork, and most of the legal writing is of the
same nature, as can be seen that writing an agreement cannot be called creative. Their object is to
pass on information. They are not fashioned to delight.
Lawyers do face certain dangers unknown to professional authors. They need not entertain their
readers, nor have they to create any interest in them. The author observes that sometimes the
66 LANGUAGE AND THE LAW

lawyers take a cruel advantage of this exemption. However, at the same time, we have to note that
some of the best creative writing has come from the pens of lawyers, especially, the judges. The
author attributes this achievement on the part of the lawyers to the immense experience their
profession gives them and their ability to respond to this experience and translate it into words. As
pointed out by Dr. Johnson, Lawyers know life practically. Lawyers have what the writers need.
Although every exposure to life helps, according to the author some profession, even if followed
briefly, make their unique contribution to a writers training. He gives the examples of painting
and medicine. Practice of law is another such profession. Arguing a case, preparing a brief, writing
a judgment provide the best exercise in creative writing. At the same time there are professional
hazards which are to be guarded against, the main of which is the heavy-footed jargon which so
many lawyers are persuaded by the pressure of their duties.
The author observes that all great writing is the result of more than a great gift. If all the writers in
the world could write as well as they wish to, the world would be cluttered with masterpieces. The
same disparity between hope and ability is experienced by the lawyers also. Some of the best
judges have been amongst the most maladroit of writers. Those who have contributed to literature
as well law belong to an over-privileged breed. They happen to be fine writers in addition to being
fine jurists. The author quotes George Orwell to describe the inequality, All men are born equal,
but some are more equal than others.
Though the best of the authors and the best-writing judges share more than a command over
words, the reasons for their writing are different. They have different preferences and their minds
are preoccupied with different concerns. Their purposes have a little in common. Therefore, the
ways in which they use language are different.
Lawyers have their own responsibilities and there are limits and restrictions upon them as writers.
Coleridge, a colossus among literary critics was wise to point out that there cannot be a rule of
uniformity against the poets. But as critics of human behaviour, lawyers have to have a rule of
uniformity in the interest of the society. Otherwise every judge will be deciding the same case in a
different manner; every lawyer will advise the client in a different manner on the same facts and
that will result in confusion as to what is the law on a particular point. Legal uniformity and legal
certainty are two important things which are to be jealously guarded.

5. THE ADVOCATE by CHARLES P. CURTIS

According to the author, justice is a chilly virtue, and one needs to be introduced into the
inhospitable halls of justice by a friend, and our best in this reagrd friend is none other than an
advocate. Therefore, the first duty of an advocate towards his clients is overcoming this feeling of
unfriendliness. In the opinion of the author, our demand upon the advocates is more than that.
They must not only be our friends, but also our champions, because our way of administration of
justice is adversarial method. In other words we set our parties fighting. According to Max Radin,
since about the fourth or the fifth century B.C. in Rome, the judges task changed from
determining the truth to the umpiring of a competition. In the beginning the cases were decided in
favour of the party winning a duel. In criminal cases parties had to fight personally, while in civil
cases the fighting was between the champions of the parties. Modern suit is a substitute for ordeal
by battle. The physical fight is replaced by legal battle. The author feels that the justification of the
adversarial proceeding is the satisfaction of the parties, not the satisfaction of others, except that
others are also prospective parties. Therefore, the author observes that the law tries to do justice
between the parties for the parties.
The author, therefore, says that the practice of law is a special case of vicarious conduct. An
advocate devotes his life and career acting for other people. Though there are other people who
also do the same, for example, the banker who handles other peoples money, the author points out
LEGAL LANGUAGE AND LEGAL WRITING 67

that there is a difference between their profession and that of the advocate. The banker owes his
duty to his bank, not to the customers, but a lawyers loyalty runs to his client. But at the same
time an advocate owes duties towards the Court also, because he is an officer of the Court. So the
question is, if there is a conflict between the two duties, which should prevail? The author feels
that the duty to clients will have to prevail. The advocates official duty to court also requires him
to devote himself to the client. Only then the Courts will be in a position to satisfactorily discharge
their function of dispensing justice. The Canons of Ethics of the American Bar Association lay
down, The lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance
and defence of his rights and the exertion of his utmost learning and ability to the end that nothing
be taken or be withheld from him, save by the rules of law, legally applied.
But, the author cautions, the duties of the advocate are to be discharged within the bounds of law,
and not by committing breach of law or by committing fraud on law. Though the advocate is the
representative of his client, he is not his clients mouthpiece. The advocate must listen to his own
conscience and not to his clients. But, as the author points out, this is easier said than done.
Acting for others is in an entirely different category than acting for oneself. The person for whom
one is acting expects that he should be treated better than others, or, in other words, he expects a
higher standard of conduct be owed towards him than towards others. Therefore, an advocate
insensibly finds himself treating his client better than other; and therefore, others worse than his
client.
After saying this, the author proceeds to examine if it may ever become the duty of an advocate to
tell a lie for his client. Does the duty of an advocate towards his client which is enjoined upon him
by law and by the obligations of his profession include telling a lie in his clients behalf? Though
many of the advocates may vehemently protest, the author asserts that there are occasions, though
rare, when it does become an advocates duty to lie for his client, in this extreme case of his
devotion to his client. Suppose, during a Lok Adalat the conciliators should ask an advocate if he
had authority to settle the case for a lesser amount than what he just demanded and the opponent
advocate just refused. Can the advocate just decline to answer? The client has, in fact, authorised
him to settle the matter at a much lesser amount if the advocate thinks that he cannot get more. But
the advocate thought that he can get more, and that was what he was trying to do. If he declines to
answer, that sends a message to the other advocate that he would settle for a lesser amount if he
cannot get more. Therefore, according to the author, the advocate should flatly deny and say that
he is not authorised to settle for a lesser amount. Though, this would be something less than
candid, it would still be a truth so long as the advocate really thought that he could get more,
because he is authorised by his client to settle for a lesser amount only if he thought that he could
not get more.
But, the advocates duty towards his client cannot rise higher than its source, which is the Court.
The author gives another example where the advocate is contacted on telephone by his former
client who unfortunately at the time a fugitive from law. The police want him and he needs the
advocates advice. The advocate goes where the client is and after hearing the whole story advises
him to surrender. The client needs some time to settle his family affairs, and they decide that the
client will surrender after two days. When the advocate returns to his office he finds that a police
inspector is waiting for him to know the whereabouts of the client. The police have the right to
know the whereabouts of the wanted criminals, but the criminals also have their rights, especially
those guaranteed by the Constitution. The advocate could say, Even if I knew, my duty as an
advocate would forbid my telling you. It is very different from saying, I do not know. It it not
really advocates duty to disclose his clients whereabouts. Drinkers Committee of the US on
Professional Ethics was definite about it and expressed, It is in the public interest that even the
worst criminal should have counsel, and counsels cannot properly perform their duties without
knowing the truth. To hold that an attorney should reveal confidential information which he has
obtained, by virtue of his professional employment from members of the family of the criminal,
68 LANGUAGE AND THE LAW

would prevent such frank disclosure as might be necessary to a proper protection of the clients
interest.
Similarly, suppose an advocate is in Court with his client who has been convicted, for a hearing on
sentence. The clerk tells the judge that the convict does not have a record, and the judge gives a
lineant punishment. But, in fact, the client has a record. The advocate knows it. Is it his duty to
disclose it to the Court? The answer is no, because he is not under an obligation to disclose it
unless he is asked.
Therefore, the author emphatically states that if there was no other way of his clients secret, the
lawyer had better be false to the truth than false to his client. Therefore, one of the functions of an
advocate is the disagreeable duty of choosing between being false to his client and being false to
the truth. On rare occasions, it is his duty to prefer his client to the truth, and if need be to tell a lie.
However, happily, such occasions are very rare and normally an advocate can be as truthful as
anyone else. Contrary to the popular conception that an advocates functions involve telling lies,
they involve telling truth skillfully. An advocate may not lie to the Court. But it may be his duty
not to speak. An advocate who unnecessarily discloses his clients case to the opponent is as much
a traitor as a traitor General who discloses his battle plan to the enemy. Therefore, the author
advises that an advocate must play his cards from close to the vest, never volunteering damaging
information unless there is an obligation to disclose. If there is a reasonable doubt that the
opponent will get dangerous information, the advocate should maintain silence. Similarly, an
advocate should not take any favours from his opponent, because that may put the advocate under
his obligation and prompt him to commit breach of duty towards his own client.
The author quotes Hamlet who said, I must be cruel, only to be kind, on his way to his mother.
Similarly an advocate has to tell himself strange things on his way to the Court. But, the author
says that they are strange only to those who do not distinguish between truth and justice. He says
that justice is something larger and more intimate than truth. Truth is only one of the ingredients
of justice.
Law has other things than success to think about. It must give the losing party, his family and
friends, as well as his sympathisers, as much satisfaction as any loser can expect. The
administration of justice is no more designed to elicit truth than the scientific approach is designed
to extract justice from an atom.
Another issue that is addressed by the article is about the advocates method of finding reasons to
reach the conclusion rather than arriving at conclusion from reason. He fixes the conclusion which
will best serve his clients interest and then sets out to persuade others to agree. The author says
that sometimes even the judges do the same, but not on purpose. They find themselves reaching a
decision before they know how they got there, and then try to justify it. The author describes an
advocate as one peculiar thinker about problems whose conclusion is always given, while other
thinkers seek for the conclusion. For an advocates thinking the emphasis is and must always be
given by conclusion, and he must find and develop a persuasive line of premise and a way to
persuade the Court to accept it. The author says that an advocates only choice is whether he will
refuse to take the case, either because he does not like the case, or because he cannot find premises
to support it. If he takes it, even to work on, he starts his thinking by trade necessity with his
conclusion. However, In India, an advocate does not have even this choice. An advocate cannot
refuse a brief except on certain grounds.
Lastly, the author tries to examine whether it is ethical on the part of an advocate to defend a
guilty person. The laymen think that it is not. But the principle duty of the bar is to see that no
accused lacks counsel just because his person is infamous or his cause detested. He quotes the
answer given by Dr. Johnson to Boswell when Boswell asked him whether as a moralist he did not
think that the practice of law, in some degree, hurt the nice feeling of honesty, and further about
his opinion of supporting a case which he knew to be bad. Dr. Johnson answered, Sir, you do not
LEGAL LANGUAGE AND LEGAL WRITING 69

know it to be good or bad till the judge determines it. The author opines that it is the law, and not
the lawyer, that does not know whether his case is good or bad. The law is trying to find out, and
so wants everyone to be defended and every debatable case tried. Therefore, there is nothing
unethical in taking a bad case or defending the guilty or advocating what one does not believe in.
It is ethically neutral. The author says that it is a free choice. But, as we have already noted, in
India, the advocate has no choice. He cannot refuse a brief just because he does not find that the
client has a good case.
According to the author the practice of law is like free speech. It defends what we hate as well as
what we most love. Every case has two sides, and for every advocate on the wrong side there is an
advocate on the right side. There is no other career that offers an ampler opportunity for both the
enjoyment of virtue and the exercise of vice, or, if you please, the exercise of virtue and the
enjoyment of the vice.

6. THE MANNER OF CROSS EXAMINATION by FRANCIS L. WELLMAN

Cross-examination is not only the most important part of an adversarial legal proceeding, but also
the most difficult part of the advocates profession. Therefore, there is a plethora of literature on
the art of cross-examination. In this article the author has stressed upon the linguistic aspects of
the skill of cross-examination.
The author states that cross-examination is necessary to find out the truth of the testimony offered
by the witnesses. In an adversarial proceeding, evidence is led by both the sides, and almost
invariably there is a direct conflict between the evidence given by the witnesses on both the sides.
That shows that witnesses on one of the sides are giving false evidence. That does not necessarily
mean that they are guilty of perjury, but they may be honestly mistaken or ignorant or prejudiced.
In any case, to give the findings on facts, the Court has to know who is telling truth or whose
testimony is correct. Cross-examination helps the Court in this regard.
After examining the importance of cross-examination from the point of view of the Court, the
author proceeds to examine the same from the point of view of the advocate who has to conduct
the cross-examination. According to the author, the advocate has to ask the following questions
before conducting cross-examination:
1. Has the witness testified anything that is materially against us?
2. Has his testimony injured our side of the case?
3. Has he made an impression with the Court against us?
4. Is it necessary for us to cross-examine him at all?
Even if the witness has not testified anything damaging the case of the advocates side, he may
still want to cross-examine the witness to elicit some points in his favour. If the witness is truthful,
this can be done by asking some straightforward questions. But not very often the witnesses will
be ready and willing to reveal facts damaging the side on which they are deposing. In such cases
the advocate has to proceed with utmost caution and lead the witness to a point where it appears to
the Court that the witness could have told much more than what he has told, and then stop. This
will lead the Court to draw an adverse inference that the witness did not tell more because had he
told more that would have weakened or destroyed case of his side.
Where the witness has testified to material facts against the advocates case, it becomes necessary
to break the force of his testimony if he wants to win the case. As already observed, where the
witness has given false evidence, there are two possibilities: either he is deliberately telling lies or
he is telling lies believing them to be true. The author observes that cross-examination in the two
cases is different because there is a difference between discrediting a witness and discrediting the
testimony of a witness. Only experience can teach and advocate how to proceed in each case. As
70 LANGUAGE AND THE LAW

the author rightly observes a skillful cross-examiner seldom takes his eye from an important
witness who is being examined by his adversary. Every expression of his face, especially mouth,
every movement of his hands, his manner of expressing himself, his whole bearing - all help the
cross-examiner to estimate his integrity.
If the advocate feels that the witness is giving false evidence due to honest mistake on his part, the
advocate will be trying to reveal this to the Court during the course of his cross-examination. The
author observes that people as rule do not use their meager opportunities for observing facts and
rarely suspect the defects of their own observations. If anybody tries to tell them that their
observation is wrong, they mistake it to saying that they are liars. Therefore, the advocate who
conducts the cross-examination should be very cautious. If he bluntly tries to prove that the
statement made by the witness is false, the witness feels that the advocate is trying to prove that
the witness is a lier, and he will immediately resent and defy the advocate at once. Therefore, the
advocate must proceed in a manner which is courteous and conciliatory, the witness will feel that
he is not unfairly being attacked by the cross-examiner and will imperceptibly be induced to state
the facts with open mind. Once the prejudice of the witness is removed, the truth comes out easily.
The author points out that by his shouting, brow-beating style the advocate may often be
successful in confusing the witnesses, but he fails to discredit him. The author quotes the example
of Benjamin F. Butler and states that he is the only advocate whom the author has ever heard to
employ the roaring method successfully. But he prefers to admire Rufus Chaote, whose art and
graceful qualities of mind put him on the fore front among the American advocates. In the cross-
examination Chaote never aroused opposition on the part of the witnesses by attacking them, but
disarmed them by the quite and courteous manner in which he pursued his examination. He was
quite sure, before giving up, to expose the weak parts of his testimony or bias, if any, which
detracted from the confidence to be given to it. One of Chaotes bon mots was that a lawyers
vacation consisted of the space between the question put to a witness and his answer. The author
also quotes the example of the celebrated English lawyer Sir James Scarlett, who was known as
the best of the cross-examiners, only to demonstrate how even an advocate of Sir Jamess standing
can meet with the undesired result by losing his self control.
The author states that a good advocate should be a good actor. Even when the advocate is utmost
cautious in his cross-examination, he may be encountered by a damaging answer. The author
points out that this is the time for the greatest self-control. If he shows by his face how the answer
hurt, that point alone will cause him to lose his case. An experienced advocate will take such
situations as a matter of course and proceed with the next question as if nothing had happened, or
else perhaps give the witness an incredulous smile, as if to say, who do you suppose would
believe that for a minute?
The Courts are impressed by an advocate who has a pleasant personality; who speaks with
apparent frankness; who appears to be earnest searcher after truth; who is courteous to those who
testify against him; who avoids delaying constantly the progress of the trial by innumerable
objections and exceptions to perhaps incompetent but harmless evidence; who seems to know
what he is about and sits down when he has accomplished it, exhibiting a spirit of fair play on all
occasions. It is he who creates an atmosphere favourable to the side which he represents. On the
other hand, the advocate who wearies the Court with endless and pointless cross-examinations;
who is constantly losing his temper and showing his teeth to witnesses; who wears a sour, anxious
expression; who possesses a monotonous, rasping, penetrating voice; who presents a slovenly,
unkempt personal appearance; who is prone to take unfair advantage of witness or counsel, and
seems determined to win at all hazards - soon prejudices the Court against himself and the client
he represents, entirely irrespective of the sworn testimony in the case.
The author observes that there is eloquence to be displayed in the examination of witnesses as well
as in the argument. Therefore, he says, There is matter in manner. The very intonations of voice
LEGAL LANGUAGE AND LEGAL WRITING 71

and the expression of face of the cross-examiner can be made to produce a marked effect on the
Court enabling it to appreciate fully a point it might otherwise lose altogether.
The author concludes his article with an advice to the cross-examiners: Speak distinctly yourself,
and compel your witnesses to do so. Bring out your points so clearly that men of the most ordinary
intelligence can understand them. Keep your audience, the Court, always interested and on the
alert. Remember, it is the mind of the judge you are addressing, even though your question is put
to the witness. He reminds us that it pays to be a gentleman, especially in Courts.

7. ART IN DIRECT EXAMINATION by FRANCIS L. WELLMAN


The author points out that the impression prevalant among the professionals as well as non-
professionals that examination-in-chief does not require as much skill as cross examination does is
wrong. He observes that this misconception is the reason behind the numerous books written on
the art of cross-examination while there are no books written on the examination-in-chief. The
author feels that the reason behind this misconception is owing to the fact that cross-examination
is so much more engaging to the spectators and its results are so much more quickly perceived by
them. On the other hand, the subtle arts and consummate skill of examination-in-chief cannot be
appreciated by the common spectators. Even the other advocates who are not engaged in the case
may fail to appreciate the same. They are apparent only to the advocates who are engaged in the
case. During the examination-in-chief the witness is put to an advantageous position by asking a
good question while in cross-examination the witness is put to a disadvantageous position and
exposed before the spectators. Therefore, the author feela that preparing for cross examination is,
in fact, much easier than preparing for examination-in-chief.
If the examination-in-chief is properly conducted, the impression created by the honest witness is
more lasting than the argument of the counsel. The author gives two examples, one of an old
iliterate woman and the other of a German barber.
The old woman had given a contract to a builder to build her house. The builder had sued her for
charges for extra work done by him on the house. According to the defendant she was not liable to
pay for the extra work done because the contractor had not carried out the work as per the terms of
the agreement. The expert witness gave evidence in technical jargon which was not understood by
the jury and the jury was put to confusion. They were unable to decide whether or not the work
was done as per the terms of the agreement. Then the defendant herself gave the evidence in the
most practical terms. She said that she had told the plaintiff that the windows should reach clear to
the floor. This graphic description helped the jury to arrive at a proper conclusion.
The barber had spent huge money on interior decoration of his shop. A tenant just above his shop
let his water basin run all through the night and the water caused damage to the furniture in the
barber's shop. The barber brought this to the notice of the tenant and asked him to pay
compensation for the same, the tenant told him to go to hell. The barber filed a suit against the
tenant. In his evidence he told this. He was asked by his advocate about the reply given by him.
The plaintiff said that he told the defendant that he will not go to hell but he will will go to court.
He remarked that going to court was as bad as going to hell. The planitiff won a fine verdict for
saying the right thing in the right way.
The author gives the following six advices to the advocates in conducting examination-if-chief.
1. Both examination-in-chief as well as cross examination should be brief. The examinations
should adhere as closely to facts in issue as possible. In a modern trial which is conducted as a
matter of business and its object is to ascertain the truth of the matter in controversy in the
shortest possible time. Its object is not to find out the talents of the advocates.
72 LANGUAGE AND THE LAW

2. The advocate should select and arrange his evidence in such a manner that the development of
his case is interesting to the hearers. A well planned trial that leads them to constant discovery
of new facts is always impressive.
3. It should be made to feel that at least the advocate believes in his own case. If the advocate
himself has no confidence in the merits of his case, there is no reason why others should have
a reason to believe that he should win.
4. He should speak clearly and distinctly, always conscious that he is engaged in an important
matter, and let his art conceal art.
5. He should always use the simplest possible language. He should be easily understood by his
audience.
6. He should preserve a calm, cool, deliberate, self-possessed, dignified demeanour. Calmness is
shown by not growing petulant over little defects, in a kindly and courteous behaviour
towards witnesses, and in a quiet dignity which gives the idea of reserved force. Any show of
loss of confidence on the part of the advocate will result in loss of confidence on the part of
his witnesses. Therefore, the advocate should convey to the witness the impression that he is
strong enough to prevent him from stumbling or falling. This confidence is created by the
advocate by his manner and demeanour, by the form in which he frames his questions, and the
manner in which he asks them.
The first thing an advocate has to do is to put his witness at ease. They are very much
sensitive to embarrassment, trepidation and prone to confusion and forgetfulness. If they are
not properly handled they can easily make contradictory statements. If a witness makes a
contradictory statement in cross examination, it may be taken less seriously than when he
makes a contradictory statements in his examination-in-chief. Therefore, the advocate should
not do anything which will put the witness under pressure or to upset him.
Therefore, it is necessary for the advocate to train himself to handle his own witnesses of
various kinds, such as the stupid witness, the diffident witness, and, the most difficult of all,
the over-zealous witness, the witness who insists upon proving too much. He should never be
allowed to tell his own story, for that will be preparing him for slaughter at the hands of the
cross-examiner. He should be made to answer the questions to the point and not to answer
questions which are not asked to him. The author quotes an old lawyer's advice in regard to
this kind of witness that he should be got rid of as soon as possible.
A stupid witness requires to be handled patiently and with good temper. Some of them are not
capable of a train of thought on any subject. They cannot observe any order of the events and
are always confused. They should be asked short questions and made to give short answers.
The advocate should refrain from becoming angry as becoming angry will put them to more
confusion. They should be encouraged by looks and expressions of approval.
Dealing with hostile witnesses needs a different approach. as quickly as possible the advocate
should show that the witness is biased and hostile. That will minimise the adverse effect that
can be caused by the hostile answers given by this witness.
7. It is often a clever move to interrogate a party to a suit on matters which the advocate knows
him to be uncertain, rather than allowing the cross-examiner to expose this. This will create a
good impression about the honesty of the witness and the advocate as well as about their
confidence in the merits of their case.
The most elementary rule of evidence is that leading questions cannot be to the witnesses in
examination-in-chief. Unless the questions are properly framed and sequenced, it will be
extremely difficult to observe this rule.
LEGAL LANGUAGE AND LEGAL WRITING 73

The author mentions two common practices prevalent among many of the advocates, which he
finds to be wrong:
1. The first one is that of pressing the witness too far. They become so enamoured with a
favourable answer that they want to hear it again and again.
2. The second and one of the most pernicious habits is that of making constant objection to
evidence on trivial matters. Such practice can only affect his case adversely. The advocate
may feel that by raising objections he is displaying his knowledge of the Evidence Act, while
the observers feel that he is trying to avoid some evidence which is damaging to his case.

8. IMPEACHMENT OF WARREN HASTINGS

Warren Hastings was the first Governor-General of British India. The East India Company had
begun as a trading enterprise but by degrees had added to its commercial pursuits the attributes of
sovereignty. Supremacy in India had been won by the triumphs of Clive, and common expectation
in England had settled down to an enjoyment of the fabled wealth of the East. The British
Government exacted tributes, the shareholders demanded increased dividends, with the result that
the local administrators found their position impossible. In a few years the Company was reduced
to hopeless insolvency, and was forced to come to the State for assistance. That assistance was
given, but at the price of a measure of control. Two Acts were passed in 1773, one to provide
finance and the other to regulate administration. The latter was imperfect. The Act was couched in
vague terms and did not afford effective and definite rules for the vital matters upon which good
government alone could be based. The relations between the Governor-General and the Council
were left uncertain. As he was only one of five, with a casting vote in case of equal division, he
might and did find himself in a minority, though bearing, all the responsibility for failure. The
spheres in which the Council and the Court were to exercise their respective powers were not
marked out, nor was any care taken to state or define the system of jurisprudence which the Court
was to adopt.
As if these Problems were not enough, the Company's position was dual in two respects. It was at
once the Government and a trading concern. As Government, its powers were derived from the
British Parliament, and from grants and appointments from native rulers, whose position as
sovereigns or as subordinates of the Grand Mogul would have defied any lawyer to state with
precision.
As a youth he had been left an orphan and thereby deprived of the hopes of an Oxford career by
his guardian, who had procured him a writership under the East India Company. In India he had
pursued the normal career of a subordinate official, but when troubles came he rose rapidly. Clive,
a great genius, soon recognised Hastings merits and appointed him as Resident at the Court of
Meer Jaffer, the successor of Sarajah Dowlah in the rule of Bengal. In the period of misrule that
followed, Hastings kept free from the prevailing scramble for wealth, and on reaching England in
1764, he was not, according to the standards of the Nabob, a man of any great means. For
several years he lived there in retirement, but in 1768 he was appointed one of the Council of
Madras, where his reform of the Companys business and finances earned him promotion to be
Governor of Calcutta, an office conferred upon him in 1772, which he held when appointed as
Governor-General.
The first important step of policy that Hastings adopted was to come to an arrangement in 1774
with the Nawab of Oudh, with a view to use Oudh as a bulwark against the Mahrattas. This policy
had been suggested by Clive. The Nawab demanded the assistance of English troops to overcome
the Rohillas. These were lent him, and the victory was followed by more than the usual atrocities
on the part of the ruler and his followers.
74 LANGUAGE AND THE LAW

Soon afterwards an accusation was made by Nundkumar against Hastings. Hastings had in former
years fallen out with him. He now said that Hastings had accepted bribes. The Council voted for
an enquiry. Soon afterwards Nundkumar was charged with conspiracy and then with forgery. He
was tried by Sir Elijah Impey, the Chief justice, convicted and hanged. Hastings said on oath that
he did not promote the prosecution, and it was not charged against him at his trial.
By this time the American Revolution was also absorbing the energies of England. France was
about to declare war and French agents were stirring the Indian princes, who were watching their
chances. In 1777 the Bombay Government became embroiled with the Mahrattas. Hastings
planned to crush them, but Hyder Ali, the ruler of Mysore, began hostilities against Madras. Once
again his forces swept over the Karnataka, the British forces were defeated and it seemed with the
advent of French forces that the work of Clive would be destroyed. Hastings threw himself into
the struggle. He realised that Hyder Ali was the main danger and he strained every nerve to oppose
him. Soon afterwards the Maharattas made peace, the French withdrew after the Treaty of Paris,
Hyder Ali died and his son made his peace. The struggle was over, and British rule remained. One
of the main problems had been to raise money, and this led to two famous incidents. The Raja of
Benaras was a dependent of the Company and was asked for a contribution He refused and was
fined 500,000. Hastings went in person to arrest the Raja and was besieged in Benaras with a
small force by the subjects of the Raja who rose in his defence. The Governor-General was equal
to the occasion. The Rajas forces were defeated and he was deposed. The administrators
appointed to govern the territory after the Rajas deposition proved ruthless in subduing and
plundering their new subjects.
The position was not clear. As in the case of the Rohillas, the demand on the Raja related to
matters outside the Presidency territory, and it was doubtful how far Hastings had or had not
power to act.
After Benaras came Oudh. The Nawab had died and was succeeded by his son. The new rulers
mother and grandmother, the Begums of Oudh, had retained the late Nawabs treasures and lands.
Rightly or no it was believed that the treasures amounted to 3,000,000. In 1782 the Nawab
presented Hast.ings with 100,000. He asked leave to retain this money. Leave was refused and he
paid it into the Companys funds. It had been the custom for the Company's servants to accept
large presents. The Act of 1773 forbade the practice, but, Hastings appears to have found it more
convenient to take the money in order to pay them over to the Company than to refuse.
A third incident was the appointment of Debi Singh to administer Dinajpur in 1780, when the Raja
of that place died, leaving a disputed succession. It was alleged that Debi Singh was guilty of
fraud and oppression. There was undoubtedly unrest. The Compays resident reported adversely of
Debi Singh, who was summoned to Calcutta. There a new enquiry was held and he was absolved.
The course of events in England must now be described.
After 1775, England had become absorbed in the American troubles. Meanwhile, in 1781the
Companys charter was about to expire and Indian affairs became important. The Commons
appointed two Committees in 1781, a Select Committee of which Burke was a member, and a
Secret Committee over which Dundas presided. The reports were adverse to Hastings. In March,
1781 the Marquis of Rockingham, an old patron of him became Prime Minister. Burke was now in
the Government and he threatened to resign if nothing were done. Accordingly in a Committee of
the whole House, Dundas carried a resolution condemning Hastings schemes of conquest. On
30th May, 1782, the Commons resolved that Hastings should be recalled. The Directors obeyed,
but their decision was overruled by the Court of Proprietors. Next year Dundas again demanded
his recall, and Burke denounced him as the grand delinquent of all. India. The Coalition
proposed Foxs India Bill of 1783, but its defeat, in the Commons caused George III to dismiss the
Ministry and make Pitt Prime Minister. Dundas joined Pitt.
LEGAL LANGUAGE AND LEGAL WRITING 75

On 30th July, 1784, Burke moved for papers relating to the case of the Begums, but Pitt opposed
in a speech which eulogisted Hastings. In 1785 Hastings finally retired, and arrived in Englanc
where he was enthusiastically received. 0n 25th June, 1785, Burke gave notice of motion to
discuss his conduct, but the session ended too soon to pursue the matter. Next year, with singular
imprudence, Major Scott, who looked after Hastings interests in the Commons, recalled the fact
that the motion had not been proposed Burke at once took up the challenge. 0n 4th April, he tabled
nine articles of accusation and produced twenty-two more. Hastings petitioned for leave to reply,
and was called to the Bar of the House.
He was not skilled as an orator, and he bored the members with an extremely long statement read
from a document. On 1st June, 1786, Burkes motion as to the First Article condemning the loan
of troops against the Rohillas was negatived. On 13th June came the motion of the Second Article
concerning Benaras. The Government whips were out against the motion but, to everyone's
surprise, Pitt supported, and the motion was carried. This change of attitude is attributed to
Dundas, who, in the former debate, been faced with the fact that the had reported against Hastings
and could make no adequate reply. Next year the matter was revived, when Sheridan made a
speech, celebrated in the annals of Parliament. In April, 1787, Committee was appointed to draw
up Articles of impeachment. On 10th May, 1787, impeachment was voted and the Commons
appointed their Managers, of whom the leaders were Burke and Sheridan. Their counsel was
headed by Dr. Scott (afterwards Lord Stowell). Hastings retained Law (afterrwards Lord
Ellenborough), Plumer (afterwards Master of the Rolls), and Dallas (afterwards Chief Justice of
the Court of Common Pleas.)
The trial opened in Westminster Hall, on 13th January, 1788. The Lord Chancellor (Lord Barlow)
presided over 170 peers. The trial lasted April 1795, coming on at irregular intervals on many
days. Ultimately, after many changes the Chance0or having resigned and no less than 70 peers
having died, Hastings was acquitted. He left the Court absolved but well nigh ruined.
It was a stately scene in Westminster Hall, when the Lords arrived in a long procession, headed by
the junior peers and followed by the Royal Family, to begin the hearing. With in a few weeks
Louis XVI was to convoke the States-General. Before the trial ended he and his consort had been
guillotined, and the Terror had spent its fury.
Proceedings opened by Hastings surrender. He knelt before the Lords. Two days were spent in
reading the Articles of Impeachment and the Answers. There were twenty long wordy Articles.
The first dealt with Benaras; the second with the Begums of Oudh; the sixth, part of the seventh,
and the fourteenth accused Hastings of taking bribes and presents set out in thirteen paragraphs.
As to the others, it does not matter; nothing was done to prosecute them.
On 15th February, 1788, Burke rose to open the general case. For four days, in matchless
eloquence, he described the history, constitution and conditions of India. On the fourth day he
ended:
I charge Mr. Hastings with having destroyed for private purposes the whole system of
government by the six provincial councils which he had no right to destroy.
I charge him with having delegated away from himself that power which the Act of Parliament
had directed him to preserve inalienably within himself.
I charge him with having formed a committee to be mere instruments and tools at the enormous
expense of 62,000 per-annum.
I charge him with havihg appointed a person their diwan to whom these Englishmen were to be
subservient tools; whose name was abhorred and detested, stamped with infamy; and I charge him
with giving him the whole power which he had thus separated from the Council General and from
the Provincial Council.
76 LANGUAGE AND THE LAW

I charge him with taking bribes of Ganga Govind Singh.


I charge him with having robbed those people of whom he took the bribes.
I charge him with having fraudulently alienated the fortunes of widows.
I charge him with having, without right or title or purchase, taken the lands of orphans and given
them to wicked persons under him.
I charge him with having removed, the natural guardians of a minor Raja and given his zamindari
to that wicked person Debi Singh.
I charge him his wickedness being known to himself and all the world with having committed
to Debi Singh the management of three great provinces; and with having thereby wasted the
country, destroyed the landed interest, cruelly harassed the peasants, burned their houses, seized
their crops, tortured and degraded their persons, and destroyed the honour of the whole female
race of that country.
In the name of the Commons of England, I charge with all this villainy on Warren Hastings, in
the fast moment of my application to you.
And then, after references to victims, the prosecutors and the judg, he concluded:
There fore, it is with confidence that, ordered by the Commons.
I impeach Warren Hastings, Esquire, of high crimes and misdemeanours.
I impeach him in the name of the Commons of Great Britain in Paliament assembled, whose
Parliamentary trust has been betrayed.
I impeach him in the name of all the Commons of Great Britain, whose national character he has
dishonoured.
I impeach him in the name of the people of India, whose laws, rights and liberties he has
subverted, whose properties he has destroyed, whose country he has laid waste and desolate,
I impeach him in the name and by virtue of those eternal laws of justice which he has violated.
I impeach hirn in the name of human nature itself which he has cruelly outraged, injured and
oppressed in both sexes, in every age, rank, situation and condition of life.
The tremendous speech was often interrupted by the applause even of the Lords themselves. But it
is one thing to deliver a philippic, another to manage a prosecution.
Hair-splitting procedural wranglings and ever so many political developments delayed the final
decision. On 16th June, 1794, Burke made his final great speech. Four days later Pitt proposed and
carried a vote of thanks to the Managers. Next day Burke left Parliment for ever.
The Lords then discussed the question who was entitled to vote, and finally decided to leave it to
the conscience of each Peer whether he should vote. A committee was appointed to consider and
report. Next year the report was considered. Each charge was voted on separately and on each
Hastings was pronounced Not Guilty, and on 23rd April, 1795, after eight years trial, he was
formally discharged.

9. THE SEDDON CASE


Marshal had reached a unique position at the Bar. As a defender of prisoners on the capital
charges, it was now recognised that he was second to none. In this case, at any rate, no better
choice could have been made. For he had a knowledge of scientific medicine unequalled by any
LEGAL LANGUAGE AND LEGAL WRITING 77

other member of the Bar and it was a store of knowledge upon which he had had, as yet, no
occasion to draw in a capital case.
On the scientific side, of the case Marshal was enthralled, but, after reading the papers he came
very unhappy and depressed about the personal aspect of the case. This is the blackest case Ive
ever been in, he observed at the first consultation.
This pessimism and lack of faith in his client at the very outset was almost unique in the history of
the great defender. He would have to conduct his case without that passionate personal belief in
his man's innocence which had carried him through so many of his trials. But this did not affect his
devotion to the great task before him. He returned all other work, and could think of nothing but
the Seddon case. He went into training like an athlete for a race or a student for a fellowship
examination, going to bed early and saturating his mind with works on the scientific questions
involved in the case.
If Seddon was guilty, the case was certainly exceedingly black one. For there was no great over-
rnastering passion, no sudden, mad impulse, long, harrowing tragedy, no bitter provocation to
excuse this sordid crime, if crime there had been. Mere greed of gold had driven the man to it. The
accused was now forty years old, and had for twenty years served his insurance company with
efficiency and credit, rising from the very lowest rung to his present post of trust and
responsibility, He was quite a licht in the Masonic world. Owing to great thrift, he had a I ittle
money put away: his income amounted to about 400 a year. So nothing was known against.
Seddon, except, perhaps, an excessive devotion to money-making, and much to his crerdit. In his
little world he was no doubt regarded as a pillar ef society, and a coming man.
In response to his advertisement during July 1910, a middle-aged spinster of forty-eight years,
named Eliza Barrow, came to lodge on the top floor of his house at 63 Tollington Park. She
brought with her a little boy named Ernest Grant, whom she had practically adopted.
At the best of times she was an extraordinary woman of quarrelsome and offensive habits. Her
chief characteristics were slovenliness, parsimony, and love of gold. She was a real miser: she
loved to keep bank-notes and gold coins in her possession, and hoarded hundreds of pounds in this
way. Her chief interest in life was her little inherited fortune of about 3,000 capital value; but
what little natural affection was left in her she gave to little Ernest Grant. Her money was invested
in India Stock, and'in the lease of a public house. The India Stock had, lately depreciated
considerably, and the liberal policy of licensing and taxation threatened her public house. Seddon
discovered that these worries were preying upon the old maids mind, and she soon found him a
very plausible and efficient rnan of business as indeed he was. Seddon, as a n insurance monger,
considered that Miss Barrows 1ife was not a good one to insure; but, conversely an excellent one
on which to grant an annuity, and after she had lived with him for twelve months, he persuaded
her to make over her entire fortune to him in return for an annuity of 150 A year or thereabouts.
Miss Barrow, as her relatives said, was a hardnut to crack, and no doubt considered that she had
made a good bargain, as she thus obtained about 30 more a year from Seddon than she could
have wrung from an insurance company or the PostOffice, Seddon paid her the annuity punctually
until September 1911, usually in gold.
On September 1st, Miss Barrow was taken ill, and Dr. Sworn, the Seddons family physician,
found her to be suffring from acute diarrhoea and sickness. As the next few days went by, Miss
Barrow became worse, and admittedly certain chemical fly-papers, soaked in water, were used in
her sickroom to destroy the flies that buzzed in extraordinary numbers round the bed of the
invalid. Her selfishness and eccentricity were shown by the fact that she insisted on the little boy,
Ernest, sleeping in the same bed with her during her illness. She was a troublesome patient, and
refused to take her medicine. A new one was prescribed, which Seddon on one occasion induced
her to take. Mrs. Seddon nursed her attentively, and Miss Barrow told the doctor that she would
far rather be, looked after by the Seddons than go to hospital; but, though she dictated a will to
78 LANGUAGE AND THE LAW

Seddon which she signed, leaving her personal effects to Ernest Grant and his little sister, with
Seddon as executor, the Seddons did not take her illness very seriously, for on September 13th,
Seddons sister and his niece came to stay in the house, and he himself went to the Marlborough
Theatre. He came back with story that he had been cheated of sixpence by the boxoffice clerk.
This was very typical of the man. At about 11.30, the little boy said that Chickie, by which
name he knew Miss Barrow, wanted Mrs. Seddon. The wretched woman had crawled out of bed,
and was sitting on the floor in agony I am dying, she said. At 6.30, Miss Barrow began to
breathe heavily and died. Seddon, as executor, immediately began to searth for her money, but,
according to his own account, he found only 4 in her cash-box and 5 10s 0d, hidden in a drawer.
In the morning, Seddon advised Dr. Sworn of her death, and, without a visit, the latter gave him a
certificate, that Miss Barrow had died of epidernic diarrhoea. Seddon paid a visit to the
undertakers, and, although in Miss Barrows papers was a document showing that she had a right
to be buried in a fannily vault at Kensal Green, he arranged for her to be buried for an inclusive
fee of 4 in a common grave. Indeed, he accepted a commission of 12s 6d from the undertaker for
introducing the business. Meanwhile, Ernest had been packed off to Southend, and no relatives of
Miss Barrow received any notifications from Seddon, although the Vonderahes, her first cousins,
lived, to Seddons knowledge, in the near neighbourhood. Seddon afterwards claimed to have
written to them, and certainly kept a carbon copy of such a letter. The corpse was removed from
the' house. Mrs. Seddon ordered a wreath of her own design and kissed the poor dead womans
face. Seddon took round to a jewellers a watch which Miss Barrow had presented to Mrs. Seddon,
to have the name of rnother removed from it. Moreover, he attended to his business on the day of
Miss Barrows death, was seen by two of his subordinate canvassers to be counting gold. He took
a bag of gold, said to one of them, as a joke, Smith, heres your wages. However, the strain of
Miss Barrows death and of overwork had told on him, and, at the end of September, Seddon and
his family joined Ernest Grant at Southend for a fortnights holiday.
Meanwhile, the Vonderahes had begun to talk, and, when they discovered in a personal interview
that all their cousins money had been made over to Seddon in return for an annuity, they drew the
most unfavourable conclusions. The body was exhurned, and Sir William Willcox, the Public
Analyst, found. on a careful scientific analysis, that the corpse contained 2.5grains of arsenic. An
inquest was held, and Seddon was required to give evidence. It was then that he consulted Mr.
Saint, and, to1d him that the old girl must have drunk some of the water in which the fly-papers
had been soa.ked., 0h, said Mr. Saint, you cant buy poisonous things like that, can you, at an
ordinary chernists? (in fact, each fly-paper contained enough arsenic at least to kill one person)
Cant you? said Seddon. You can get them at any chemists. Seddon was arrested on
December 4th, and on his arrest he made a very curious statement which did not at all help him.
Absurd, he said, What a terrible charge, wilful murder? It is the first of our family that have
ever een accused of such a crime. Are you going to arrest my wife as well? Have they found
arsenic in the body?
The trial started at the Old Bailey on March 4th, 1912. In accordance with the custom in poison
trials at the Old Bailey, the Attorney General himself came down to lead for the Crown. The
holder of that office was Marshalls old friend Sir Rufus Isaacs. The Crown had indeed brought
down their heavy guns against the two wretched people in the dock, and in truth they had not
miscalculated. Seddon himself was a man of great ability, and all the Attbrney-Generals powers
of penetrating enquiry were needed to break down his facile fending.
This trial, the longest capital case in which Marshall was ever engaged, tasted for ten days, and
was remarkable for two great forensic duels, in which the combatants were well matched. It was a
hard, dogged f ight question and answer, argument for argument, day after day.
The first great duel was a scientific one. The theory of the prosecution, supported by the expert
evidence of Sir William Willcox, was that Miss Barrow had died of acute arsenical poisoning,
that is, a fatal dose administered within twenty-four hours of death; and that the only people who
LEGAL LANGUAGE AND LEGAL WRITING 79

had the opportunity of administering such a dose were the Seddons. For this contention evidence
of motive was obviously relevant. The defence was twofold: negative and positive. The negative
defence, which had great cogency, was that the prosecution rested entirely on indirect evidence;
the second, that Miss Barrow had died of epidemic diarrhoea, as the doctor had certified, perhaps
aggravated by chronic arsenical poisoning, or arsenic taken for a long period of time before
death. The defence also kept in the background, as a possibility, the alternative theory of suicide.
Now, if Marshall Hall could prove that Miss Barrow died, not of acute, but of chronic
arsenical poisoning, Seddon was as good as saved, as it was admitted that such taking of arsenic
over a prolonged period might reasonably aggravate the effects of a violent attack of epidemic
diarrhoea. The evidence by which the prosecution stood or fell on this point was that of Sir
William Willcox. Now, calculation of the total quantity of arsenic found in the body was based
upon the results of scientific experiment, which had never before been brought forward as
evidence in a court of law. Whereas in two component parts of the body, viz., the liver, and the
intestines, it was practicable to weigh the arsenic found in the body, it was not practicable to
weigh that found in the other more widely distributed parts. In the liver and the intestines, by a
process of weighing .63 grain of arsenic was found. Now, two grains of arsenic make a fatal dose,
and it was therefore necessary to make further researches to bring home the case against the
prisoner. Arsenic is a poison. which very rapidly spreads throughout the whole body, and it
necessarily follows, to any mind conversant with medicine, that, if so much arsenic was present in
the liver and the intestines, it was present elsewhere. But it was not practicable to ascertain by
weighing, a substance so widely distributed and Sir William had recourse to Marshs test, a
chemical experiment by which arsenic is extracted from a minute specimen of a part of the body in
the form of a gas, and deposited on the surface of a tube, technically called a mirror. Tiny
quantities were found in the skin, the nails, and the hair, but these were not counted. Now 2.01
grains were enough for a fatal dose, but arsenic being a poison which is very quickly expelled
from the system, Dr. Willcox estimated that at least 5 grains of arsenic had been administered to
Miss Barrow within a short time before her death, to leave 2.01 grains therein after death, the latter
quantity being the total of weighed and calculated quantities of arsenic.
This experiment was no doubt sound, and even conservative, in its solution; but it is one thing for
a scientist to prove to his own satisfaction that, for obvious scientific reasons and by an elaborate
scientific experiment, 5 grains must have been administered to the dead woman shortly before
death, and another thing to convince a sensible British jury as to the truth of this theory, when only
.63 of a grain, or less than a third of a fatal dose, was actually weighed and produced. None knew
this better than Marshall Hall, and he attacked the whole experiment. He first made Sir Williarn
admit that any initial error made in the experiment itself would be multiplied hundreds, or, in the
case of some parts of the body, thousands of times in the calculation which followed it. The vital
question was then put.
And I am sure it was an oversight I mean I may be wrong-but in making this calculation you
have made no allowance whatever for the lossof water? (No, I have not).
Marshall had thus established a great deal he had successfully exposed the scientific experiment in
an important particular, and Englishmen always appreciate the spectacle of science confounded on
its own ground. Much had already been achieved when he passed to a simpler point, a stronger
one and more easily comprehended.
Among the abundant literature which he had been perusing for the purposes of this case was the
report of the Royal Commission on Arsenic. Now Marshall Hall had in the forefront of his mind
every detail of the conclusions of this commission; Sir Williarn Willcox, on the other hand, had
them in the back of his memory, but had not read the report for sometirne. From a wide
examination cases the commission had reported that arsenic does not penetrate even into the
proximal hair (that is, hair nearest the scalp) unless taken by the person affected some weeks
80 LANGUAGE AND THE LAW

before, and does not penetrate to the distal hair (the hair away from the roots) unless the person
affected has taken arsenic at a considerably distant period months, perhaps years, ago. For
arsenic remains in the hair it grows; and, the hair growing about five or six inches a year, it is
possible to compute how long ago arsenic was taken by the distance it is away from the scalp in
the case of a woman with long hair. Now, Sir, Williarn Willcox had examined a portion of Miss
Barrows hair of about twelve inches in length. Very innocently, Marshall asked him first about
the proximal, then about the distal, ends of the hair.
In the proximal end of the hair you found one-eightieth of a milligram? Yes.
What did you find in the distal end of the hair? One three-thousandth about a quarter as
much, replied Sir William, with a smile at being asked about so small a quantity.
But the questions were not innocent. If arsenic was found in the ends of the hair, as Marshall went
on to prove slowly, question by question, then Miss Barrow must have taken arsenic weeks ago,
months ago, even years ago, before she even went to live with the Seddons, and if this was so, the
defence had as good as won, as the jury, with Willcoxs admissions in their ears, would certainly
prefer the theory of the defence that the poor lady had died of epidemic diarrhoea, aggravated by
chronic arsenical poisoning, rather than the theory of the prosecution that she had died of acute
arsenical poisoning, administered by the Seddons. When everything was prepared, Marshall
obtained these answers from Dr. Willcox, which were indeed a triumph for his painstaking
advocacy.
Is the finding of the arsenic in the hair corroborative of acute arsenical poisoning, or of chronic
arsenic takings? If arsenic is found in the hair it indicates that probably the arsenic had been
taken for some period.
I am sure you will give me a fair answer. Apart from all other symptoms, or, any other questions,
if you only find arsenic in the hair, you would take that as being a symptom of a prolonged course
of arsenic? Of a course of arsenic over some period.
And the minimum period would be something about three months? I think that
In the proximal portion, but you would not expect to find it in the distal ends in three months,
would you? Not in large amounts.
Not in the amount you have got here? This minute quantity in the distal end might possibly
mean some arsenic might have been taken, perhaps a year or more ago? More than a year
ago.
Here Marshall Hall should have sat down. If he had, Seddon might well have gone free, and
Marshall by sheer scholarship and skill in using it, would have achieved a marvellous forensic
triumph. But, unfortunately or, rather, fortunately for the ends of justice Marshall went on
driving the point home so that the jury could not possibly mistake the importance of the
admissions, and all this time his learned and brilliant antagonist was thinking hard. Could the
arsenic have got into the hair by any other means?.
Before Marshall had finished giving the famaous scientist a lesson in science, Wilcox had thought
of the true explanation. Miss Barrows long hair had become contaminated by the blood-stained
fluid which was dispersed all over the coffin, and in this way had become tainted with arsenic.
Before he left the box he made a discreet suggestion that this the true explanation. Marshall
poured scorn on this as an afterthought, as indeed it was. Did you not wash the hair with all care,
before making the experiment? he asked.
That was late on the Thursday afternoon. The case now literally hung by a hair. Willcox quietly
went home and thought more about the matter. Then he paid a visit to his hospital, and begged a
long length hair from one of his fair patients. This lovely strand of hair was then soaked in the
LEGAL LANGUAGE AND LEGAL WRITING 81

blood-stained fluid from Miss Barrows Coffin, in which the latters hair had been found matted at
her exhumation. The experiment was then entrusted to another medical man, Dr. Webster; the hair
was washed just as Miss Barrows had been, and it was found to contain arsenic just.,as Miss
Barrows had done. On the following Tuesday, Sir william was recalled to give evidence as to this
experiment. The experiment was a simple one with a successful result, which any juryman could
appreciate, and the effect of Marshalls brilliant cross-examination was gone.
Eight days of this trial had punishgd Marrshall cruelly; he had felt the responsibility of two human
lives on his shoulders, one of whom, the woman, he was sure was innocent. For this paramount
reason he kept an iron grip on his self control, and, knowing his own weakness, studiously avoided
any kind of friction with the Bench. Undoubtedly his was the commanding personality, in that
great court, even with the Attorney-General there against him. In no way did Marshall Hall show
an inferiority, throughout this memorable trial, to the leader of the Bar. Those who consider that
Marshall Hall was a superficial man, who won his fame and victories by an overbearing, masterful
personality and flamboyant rhetoric, would do well to study his cross-examination of Sir William
Willcox, which was a profound, scholarly, and patient effort, and an intellectual achievement of
which any man could be proud.
When Marshall Hall rose to address the jury on the ninth day he looked tired and haggard. The
strain had been so great that he expressed the hope that this would be the last capital case of his
career. Gentlemen, he said at the commencement, nobody can attempt to deny that this is one
of the most interesting cases that probably have even been tried in this building or in the building
of which it is the successor. At great length, and with exhaustive detail, he repeated his
arguments as to the scientific evidence, and referred with contempt to Sir William Willcoxs
further experiments, made simply because his primary evidence was self-destructive.
Gentlemen, he said, the great scientists who have been here have told us much of the marvels
of science and of the deductions that can be made from them. But there is one thing all scientists
have never been able to find, never yet able to discover, and with all their research, and with all
their study, and this is, how to replace the little vital spark we call life. Upon your verdict there
depends, so far as I am concerned, the life of this man. If your verdict is against him, that vital
spark will be extinguished, and no science known the world can ever replace it.
When he sat down, Richard Muir scribbled a note and sent it to him. My dear Marshall! A truly
great speech. Of many good things I have heard you do, quite the best. Yours always, R. D. Muir.
The great battle had been both won and lost.

10. SOMAVATI CASE

It was during the turbulent times of the World War II that Commander Somavati joined the Indian
Navy as a Cadet Officer and was sent to England for training with the Royal Navy. Cadet
Somavati after reaching England was attached to a coastguarding frigate with its head-quarters at
Portsmouth, where it used to return after a fortnight of the most dangerous and exacting active
duty and Somavati got off-shore leave for a fortnight. During this period, he and his fellow
English Cadets used to study in the attached Naval College and also go out on short sightseeing
trips in Great Britain.
In the naval establishment at Portsmouth, there was a steno-typist of the name of Sybil, a girl of
Anglo-Spanish descent. She was a dark-haired, wide-eyed lissom girl of extraordinary beauty, and
she combined the lithe and vivacious grace of the English flapper with the languorous charm of
the Spanish Senora. Even a wink from her gleaming eyes would stir a mans heart, and a wishful
glance from those large windows ot the soul would be like a broadside from a battleship, too
devastating to resist. Sybil was known as hot-stuff throughout the naval establishment, and the
82 LANGUAGE AND THE LAW

English boys steered clear of her. Somavati, entirely unaccustomed to such feminine liberties at
home, fell an - easy prey to her irresistable charms and brazen advances. Whenever he got the
chance, he talked to her in office, took her out for evening walks or to the picture houses, and even
went out with her on long hikes in the Countryside. Before long, he started visiting her home and
the infatuation drove hirn reckless so much so that he could scarcely visualise the snare that was
being cast around him by the wily girl. One lonesome evening she softly whispered into his car
that she was in a certain condition and that he was directly responsible for that predicament of
hers. There was no way out for them but to marry and over the social stigma that would otherwise
engulf them.
Sybil and Somavati were quietly married at the Registrars Office at Portsmouth,and within three
months a son was born to Sybil, Somavati dared not question whether the baby was actually his or
not, as legally it could not belong to anyone else after his marriage to Sybil. That was the English
law.
The War ended in August, 1945. Somavati returned to India after the completion of his training
and was posted at, Bombay Naval Head-quarters as a Quarter-Master incharge of a Mine-Sweeper.
His family also came to India after a few months, and despite the orthodosk views of Somavatis
aged parents, they were liberal enough to recelve Sybil with a warmth of, welcome that even
surprised Somavati. Sybil was treated just like a daughter of the family despite her foreign
antecedents and her divergent nature, habits, ideas and customs.
Somavati was an exceptionally clever and efficient officer and his rise in the Indian Navy was
equally spectacular. Within 10 years of his return from England, he rose from a Quarter-Master to
a Captain, and from a Captain to a Commander. He was even slated to be a Vice-Admira1 within
two years, and incharge of a Naval flotilla.
His duty, however kept him away from his home and family for Months together. But he was such
an ambitious person and so bent upon making a name for himself in his line, that he did not mind
these periodic long separations. His youthful ardour and passion for Sybil had almost died down
with age and the years that rolled by, and his coldness for her had, by now, come to such a stage
that he did not even care to write to or communicate with her during the long periods of absence
from home. He took it as a matter of course.
Not so with Sybil. Although mother of two children, wife of an important Naval Officer and
daughter-in-law of a sedate and orthodox Hindu household, she could not curb her ebullient
femininity and passionate womanhood. With the hot Spanish gipsy blood in her veins, she was
always on the look-out for her neve ending sensual pleasures. The smouldering fire of her desire,
disillusionment and despair was consuming her soul like a canker inside a flower-bud.
Pran Ahuja was an old and intimate friend of Commander Somavati. He was now a well-known
contractor and businessman, dealing with motor vehicles of all descriptions and their spare parts.
After the partition of the country, when Lahore became a part of Pakistan, Ahuja shifted his
business to Bombay, and before long his firm established itself as a big commercial house of that
city. His business flourished and soon he was rolling in wealth.
With wealth came wine, and with wine entered woman. Ahuja was a bachelor living in his large
and luxurious mansion in a Bombay suburb with his oniy sister Nisha, a school mistress and a
spinster. She was a quiet little woman who did offer the least resistence to the nightly orgies of her
brother in their own house. Prostitutes and notorious Bombay call girls freely visited the house
and hovered around like bees droning over an overripe mango. It was all roses for Ahuja when
something happened and changed the entire spectacle.
Somavati was generally so intensely engrossed in his official duties that he never had the time to
know or find out that his great friend and former class-fellow Ahuja was also in Bombay and was
a rich and influential figure there. One day by sheer chance he met Ahuja in a picture house where
LEGAL LANGUAGE AND LEGAL WRITING 83

he had gone with Sybil. He introduced her to Ahuja and invited him to come and visit them in
their house at Bandra. This Ahuja readily accepted, and soon he was a daily caller at the house of
Somavbti where he remained till late in the night, often dining with them before returning to his
own house. The former daily boozing orgies in Ahujas house began to thin out and the women of
the town finding that the bird had flown, began to look out for fresh fields and pastures new. A
miraculous transformation had come over Ahuja. In place of the former boisterous boozer and
reckless womaniser, he was now quiet and soft-spoken partaking only sparingly of the food and
drink generously offered to him at Somavatis house. His furtive glances towards Sybil soon
changed into a lingering gaze as Sybils large and dark eyes also beckoned a passionate response.
The two needed opportunities to fulfil their hearts desire. These were not long to come.
Somavati had cooled so much that he did not even take any notice of the advances that Ahuja was
making towards Sybil. In fact, whenever he went away on a long off-shore duty he requested
Ahuja to look after Sybil in his absence. This Ahuja promised to do. He also said that if Sybil so
desired, she could come to his house as often as she liked and talk with Nisha and even stay with
her occasionally to relieve herself from the loneliness and boredom resulting from her husbands
absence. One morning in late October 1958, however, the house of Ahuja was the scene of a
gruesome tragedy. Ahuja was found lying dead on the floor of his bedroom in a pool of blood,
with multiple gunshot injuries on his person. The servant who had heard the sound of gunshots
coming from his bedroom, rushed towards the room only to see the glimpse of a burly man in
white bush-shirt and trousers rushing out of the room, flourishing a large pistol in his hand. He
threatened that anybody trying to stop him would be shot dead. He quietly walked down the stairs,
boarded a small car, started the engine and was soon out of sight. None of the servants could
recognize the murderer as he had never been in the house before.
The police soon, arrived on the spot and removed the dead body for a postmortem examination.
They questioned Nisha and the servants, but none of them could say who the assassin was
and,where he had come from. The postmortem examination revealed that Ahuja had been killed by
three gunshots, one of which grazed, the three fingers of his left hand, the other penetrated the
edge of his right lung from the back and passed out in front, but the fatal wound was caused by a
shot which struck the back of his neck in an upward direction, fractured the skull and was lodged
inside the left frontal lobe of his brain (cerebrum.) The bullet inside the brain was recovered
practically intact, but the other two bullets that had strayed out were ccnsiderably flattened and
deformed after hitting the walls of the room. Physical examination of the bullets showed that they
were of .38 calibre elongated lead slugs. Each bullet weighed about 200 grains and had seven
groove markings with a left hand twist. Apparently the bullets must have been fired from an
automatic (self-loading) pistol, and from the details revealed in the examination, it seemed almost
certain that the weapon used in the murder was a .38 bore military service pistol commonly used
in the navy as a personal weapon. It has a nine inch barrel and holds six catridges in the magazine-
handle and one in the chamber. The operation is semi-automatic like that of all self-loading
weapons. Such a revolver is prohibited for the general public and is meant exclusively for use of
military personnel. The three empty shells thrown out by the ejector mechanism of the pistol were
also recovered by the police from the room of themurder. The milled base of the undeformed
bullet extracted from the dead body fitted exactly into the corresponding, grooves at the opening
of the empty shells.
In the meantime, however, an extraordinary thing had happehed. Commander Somavati had
surrendered himself at a police station in a Bombay suburb with a Remington (U.S.A.) .38 bore
six-shot military service pistol in his hand with two live catridges in the magazine and one in the
chamber. He, made a confession that he had killed his old friend Ahuja by f iring three shots from
his pistol, as he had seduced his wife Sybil during his long absence and she had become pregnant
by him. On the strength of this confession and the circumstantial evidence of his possession of the
84 LANGUAGE AND THE LAW

pistol firing the shots that actually killed Ahuja, Commander Somavati was arrested and sent up
for trial on charge of intentional murder.
The tria created a sensation throughout India on account of this unprecedented murder in high
society. Here, surprisingly enough, Somavati retracted his confession made at the police station,
and stated before the Court that he had a cause of grave provocation against his friend, as the latter
had seduced his wife. When he went to the house of Ahuja on that fateful morning, he had no
intention of killing him at all, but wanted to iron out the matter with him and to find out if he
would marry Sybil if Somavati divorced her on account of her infidelity towards him. Ahuja
scoffed at the idea and said, should I marry every woman I sleep with? Ahuja sarcastically told
him also that Sybil had come on her own accord and enjoyed his embraces and there was no
question of seduction. On seeing, however, the pistol on his dressing table where Somavati had
placed it for intimidating him into submission, Ahuja grabbed it and was aiming the weapon at
Somavati, when the latter also gripped it. In the struggle that followed, three shots accidently rang
out from the pistol and they killed Ahuja on the spot. This grim spectacle so unnerved Sornavati
that he went to the nearest police station and surrendered himself to the police. His mind however
was in such terrific confusion and dismay at the ghastly tragedy that he did not know or remember
a word of what he had said at the police station by way of what was alleged to be his confession.
Unfortunately for Sornavati, his retracted confession and his new version of the grim episode
before the Session Court did not help him much. Evidence was available that on the tragic day
avatihad issued for himself a .38 bore automatic service pistol together with six rounds of
ammunition from the ships arsenal where he was on duty, and had signed the weapon register
indicating that this was for private and not for service requirements.for, which no such
endorsement was necessary. It was further found that Somavati did make the confession at the
police station imrnediately after the murder as claimed by him, but did so two full days after, when
it was almost certain that Sornavati had been recognized as the killer of Ahuja and the issue of a
warrant of arrest ainst him was imminent.. It was also established that on the day of occurence
Somavati was very grim. The talk he had with his wife while driving back after dropping the
children at a theatre for a matinee show and his plain speaking her, that he would shoot Ahuja
dead if he proved false to her as well and did not accept her as his wife, also bared his ghastly
purpose. Sybil in her deposition before the court said that she was infatuated with Ahuja, and
would surely have married him after obtaining divorce from Somavati who had neglected her
continuously and had become cold and indifferent towards her. She said that there was no question
of her seduction as she had gone to Ahuja of her own accord, and she was at perfect liberty to do
so, being a free woman. The story of a struggle between Ahuja and Somavati was also disproved
by the evidence at all the gunshots on the body of Ahuja were from the back, including the fatal
one at the rear of the neck which travelled in an, upward and forward direction, the bullet having
lodged in the left forward lobe of the cerebrum after fracturing the skull and grazing the inside of
the cranium. There was no scorching, burning or, tattooing at the site of the wounds which
certaihiy would have resulted if the weapon had been fired from a close range. At the time of
death, Ahuja was wearing only a big towel as he had just come out after taking a bath. The towel
was attached to the dead body in the same position and had not fallen off, which would have been
impossible had there been any struggle between these hefty men. From all appearances, therefore,
it appeared to be a case of cold-blooded and premeditated murder. The most surprinsing thing,
however, was that the jury returned an unanimous verdict of not guilty of murder. They would
not even agree to a verdict of culpable homicide not amounting to murder. (Sec. 304 I.P.C.).
Apparently the jury had been worked up or manipulated by the defence which had engaged
eminent and influential lawyers with considerable amounts of money flowing in from various
quarters. The Session Judge disagreed with the Jury; held their verdict as perverse and referred the
case to the High Court which found the evidence against Somavati to be overwhelming and clear
with hardly any extenuating circumstances except that Somavati had a reasonable gro'use against
LEGAL LANGUAGE AND LEGAL WRITING 85

his friend for having enticed his wife. The capital sentence of murder was thereforenot awarded
and the High Court sentenced Somavati to imprisonment for life.
The once farnous, and greatly admired officer of the Indian Navy passed into oblivion.

11. WHICH BULLET KILLED MRS. KNOWLES?


After Mrs. Knowles, wife of Dr. Benjamin knowles of Bekawi, Ashanti, on the West Coast of
Africa, suffered a wound from a .455 revolver bullet on October 20, 1928, from which she died
three days later, two .455 calibre bullets were found in their bungalow. One was on the bedroom
floor, the other inside a wardrobe. Yet only one bullet had been fired that day. One of them was
the fatal bullet, but which?
Behind the question lies one of the strangest shooting dramas of this century.
The case of Dr. Knowles, the Scottish doctor accused of murduring his wife in a British colony,
fulfils many tests. His trial before a judge, sitting without a jury, at which he was denied by
Ashanti law the help of counsel or appeal to a higher court within the colony, raised constitutional
issues which even the Judicial Committee of the Privy Council, to whom he appealed, were unable
to determine. His conviction was quashed on the technical issue of misdirection by the judge.
The Knowles case is an unusual and a famous one. It raised not only extraordinary constitutional
issues but equally fascinating problems of the behaviour of guns and bullets. Then there is the
human angle: love and loyalty, weakness and irritability, and those time-honoured excuses fcr
human frailty-heat and drink.
The lunch party given by Dr. and Mrs. Knowles on October 20, passed-off well. The host and
histess did not drink too much, and they did not quarrel, which was unusual but pleasing. The
midday sun beat down on the District Medical Officers bungalow. No cloud obscured the sun or
dimmed the happy atmosphere indoors. When the guests left at 2.15 p.m. Dr. and Mrs. Knowles
retired for the usual afternoon sleep, necessary in that humid heat. The lazy quiet of the African
afternoon descended upon the Knowles residence.
It was broken suddenly at 4.30 p.m. Sampson, the native boy, was laying tea in the chop-room.
From the bedroom he heard Knowles shout Show me. A few seconds later came a shot and he
heard Mrs. Knowles cry out words which he interpreted as Ah, Ah. Sampson ran to Margins
house and told the District Commissioner Mr. Margin, what he had heard.
Margin got into his car and drove over. Pulling up outside the bungalow, he called Dr. Knowles
who came out, naked except for a towel round his waist. Had there been an accident? Margin
enquired. No, replied Knowles, everythjng was all right. Nothing further was said and Margin
drove off to join a tennis party to which he had been invited. When he returned home later in the
evening, he was told that Sampson had called again and he had left a message that Missie cry
very much.
Margin felt himself in an awkward position. He, however, contented himself with a note in which
he wrote; Dear Doctor, your boy has been over three times to see me and has evidently got the
wind up. Naturally I cannot butt into what is not my concern, but if I can be of assistance to you
know that you just have to say so. Dr. Knowles received this not but did not reply to it.
The Deputy Commissioner, however, informed the Provincial Commissioner and Knowless
superior Dr. Gush. Knowles told Gush that there had been a domestic fracas. He showed Gush
bruises on his leg which he said had had been given him by wife with an Indian club. He said his
wife had been nagging at him on the previous afternoon and he told her that if she did not leave
the room, he would put a bullet in her.
86 LANGUAGE AND THE LAW

Linking this startling information whh the boys story of a shot, Dr. Gush suggested that he sees
Mrs. Knowles, whom he found standing by the bed. She said she had been wounded and she
allowed Gush to examine the bullet wound in her left hip. Gush saw at once it was serious. The
entry hole was the size of a three-penny piece, and the bullet had passed out on the right side of
the abdomen, leaving a hole, the size of a sixpence.
To Gushs question, how had the accident happened, Mrs. Knowles said that she had been
examining her husbands revolver while he slept on the bed; she put it on a chair and shortly
afterwards sat down upon it. She tried to remove it, but the openwork sleeve of her dress caught in
the trigger and it went off. At this, Dr. Knowles interupted to say, Speak the truth, and his wife
replied, Shut up, Benjy. You do not know what you are talking about. Knowles said he had
treated the wounds with, iodine and made his wife rest. Dr. Gush ordered Mrs. Knowles to be
removed to the hospital at Kumasi.
Later in the evening Major Srnith the Acting Commissioner of Police and his assistant Mr. Morris,
arrived at the bungalow. They told Knowles that his wife wished to make a dying statement and
they persuaded him to accompamy them to the hospital.
To the observers he seemed dazed and unwell and had to be helped to a chair. While the Police
officers were ecilecting various articles, he said to his native dispenser, Well, Mr. Hansen, if I
dont see you again soon and he drew his finger across his throat, looking upwards. Knowles
also said several times over, The whole business is very bad. I dont care what happens to me. I
am worried about my wife. If my wife rolls up, it, means a murder case. If my wife rolls up I shall
be hung by the neck until I am dead. At the hospital he repeated his remark, If she, rolls up, I am
afraid I am for it.
Knowles was taken to see his wife. She said she would make a statement on oath and a Bible was
handed to her. Now my dear, tell the truth, her husband told her. I 'shall tell the real truth. She
replied. Mrs. Khowles restated very much, but not quite, what she had told Dr. Gush. She said she
sat on the gun and it had got caught in the lace of her dress, whereas to Gush she had stated it got
caught in her sleeve. She continued, I did not realise I was shot until I saw the blood running
down my leg, adding, I am not in fear of death, words which legally invalidated her statement
as evidence. When she told her husband was under arrest she declared he could not have inflicted
the wound because he was in bed at the time.
Mrs. Knowles died at 1.0 a.m. October 23, and Dr. Knowles was charged with her murder. The
Acting Commissioner of police felt himself on safe ground for to hirn it appeared abundantly clear
that Mrs. Knowles had been shot in a place and in a manner where it was virtually impossible
either for her to have shot hersetfor to have sustained the accident she claimed. Apparently she had
been trying to cover up for her husband.
Police officers sent to search the bungalow were told by the native boys that they had found two
.455 calibre bullets. Yet only one shot had been fired. Sampson and another boy named Kofi said
they found bullet No. 1 in a pool of blood on the floor of the bedroom on the evening of the
shooting. Next day they found bullet No. 2 under some dresses on a shelf in the wardrobe. The
police noticed a jagged hole in the wardrobe door and an identation in its back, which Sampson
said were not there before the shooting. The police found also a hole, its edges suspiciously
blackened, in the mosquito net which covered the bed, and on the bedside table a mark which
might have been caused by a bullet. The native boys said that both the hole and the mark were
fresh. The police concluded that Mrs. Knowles had been shot by bullet No.2 and on that bullet the
prosecution based its theory of crime. Before they left the bungalow the police officers took
posession of a .455 Webley revolver which contained one discharged and five undischarged
cartridges.
LEGAL LANGUAGE AND LEGAL WRITING 87

Dr. Knowles was brought to trial at Kumasi on November 13, the proceedings lasting nine days.
There was no jury, and neither prosecution nor defence were allowed the help of counsel. The
Commissioner of Police Mr. Piergroome, who had returned to the colony, conducted the
prosecution and Dr. . Knowles was allowed to cross-examine witnesses and to give evidence, h
irnself.
The prosecution, rested its case on three main planks: Sampsons story of the shout and the shot
on the afternoon of October 20; Dr. Knowles suspicious remarks and behaviour; and the medical
and police evidence relating to the wounds and the suspected trajectory of the fatal bullet. Mrs.
Knowles dying statement was dismissed as a sporting gesture to free her husband from blame. It
was pointed out that her version of the shooting was palpably inaccurate since in one version she
had said the gun caught her sleeve, and in the other, in the lace of her dress. No lace dress had
been found in the bungalow.
The accident theory was further weakened by the evidence of the boy, Sampson who testified that
he had heard Dr. Knowles shout, Show me before he heard the shot, the significance of this
evidence being that it would have been far more creditable to the accident theory if Dr. Knowles
had called out, Show me meaning showme the wound, after the shot had been f ired. That, in
fact, was Dr. Knowles version of the shooting when he himself gave evidence.
He said that he was lying dozing on the bed when he heard a shot and his wife cry out, Oh I have
been shot. He then said. Show me. Sampson had got it the wrong way round.
Knowles defended himself by saying that his wifes wound had been, as she stated, accidental, and
he told the court that No. 2 bullet, the one found in the wardrobe, the bullet on which the
prosecution based its theory that he had shot his wife, had been fired by his wife to scare him
sevaral months before. The bullet found in the pool of blood on the floor of the bedroom was the
fatal bullet. Knowles statement that bullet No. 2 had been fired before the fatality was
corroborated by the evidence of Mr. Bradfield, the Inspector of Public Works, who said he had
seen the bullet hole in the wardrobe before October 20 and that Dr. Knowles had then told him the
same story he stated in the witness-box.
Knowles accounted for his strange behaviour and suspicious remarks after the shooting by saying
he was upset at his wifes accident and by the drink and drugs he had taken.
Thus, the prosecution argued, at one time or another, both Dr. Knowles and his wife had tried to
take the blame, in order to shield each other. Mrs. Knowles had not spoken the truth when she
accounted for her wound by an accidental shooting, they said, adding that Knowles remarks to
her at the house, and at the hospital, Now tell the truth sounded very much as if she was lying on
his behalf. Seldom had a court faced such a dilemma.
Confronted with this impase, the court turned to the study of the bullet theories. The two
policemen, Major Smith and Mr. Morris, put forward the theory that the bullet found in the
wardrobe was the fatal bullet. Reconstructing the crime, the experts traced the alleged course of
the bullet by connecting with a piece of string, 11 feet long, the points through which it was eged
to have passed. According to this theory, Knowles fired the shot, the bullet passed ugh the
mosquito net, leaving a blackened hole, struck the table, continued on, its course haing been
slightly deflected by the resistance her body, but with sufficient momentum to penetrate the door
of the ward robe, to strike its back and fall amongst the dresses. The strength of the theory lay in
the evidence of the house boys that the hole in the mosquito net and themarks on the wardrobe had
not been there before the shooting.
Ingenious though this was, the theory contained flaws not the least of which was the policemens
failure to account for the other bullet found in the pool of blood on the floor, the presence of which
in the bedroom seemed such striking corroboration for the accident theory. If the wardrobe bullet
was the fatal bullet, how had the floor bullet got there? Had it been dropped by accident? Or had it
88 LANGUAGE AND THE LAW

been planted by Dr. and Mrs. Knowles to support the accident story? Only one shot had been
heared, and the revolver contained only one discharged shell.
The evidence of facts and the inferences which could be drawn from them were beginning to look
as suspect as the doubts about Sampsons memory and the question of who had tried to cover up
for the other.
Moreover, the police theory raised other conflicting issues! For the bullet to have been fired from
the bed and finish in the wardrobe, it must have been fired from right to left, whereas the
wounds.in Mrs. Knowles body ran from left to right. Then the angle of such a shot was almost
impossible to imagine. If it passed upwards through her body as the wound indicated, to land in
the wardrobe, where the relative position of the hole in the door and the mark at the back proved it
had been rising steeply, from where had it been fired ?
Either Mrs. Knowles had been standing on the chair, which was unlikely, or Dr. Knowles must
have been lying on the floor, which was just as unlikely. That she had been bending over was the
only remaining Possibility.
The prosecution fought hard to explain these difficulties. The evidence turned to the wound itself,
and witnesses clashed on the question of the obstruction caused by a bullet passing through a
human body. Major Smith, who had been a musketry instructor, gave his opinion that the failure
of the bullet to penetrate the back of the wardrobe showed that its penetrating power had been
lessened by passing first through some other obstruction. Dr. Gush who had considerable
experience of firearm wounds in the World War, stated his opinion that the bullet after passing
through Mrs. Knowles would have had sufficient energy left only to trickle from the wound and
fail to the floor. It certainly could not have continued on for another fifteen feet and penetraied the
wardrobe. The fatal shot, said Dr. Gush, had been fired from within a few feet while Mrs.
Knowles was stooping or semi-sitting. Thus while he had given his opinion against the
prosecution theory in the matter of bullets, he did not go so far as to support the accident theory.
The long delay before the shooting as disclosed, and Dr. Knowles treatment of his wifes wound,
ruled out the possibility of determining, by scorching or blackening, the distance the gun had been
from the Wound.
Could Mrs. Knowles death have been an accident, as she herself declared? Knowles said it was
his practice to place his revolver, fully loaded, by his bed-side each night, as there had been a
burglar scare. It was there that afternoon also and his wife could have picked it up and placed it on
the chair.
With the theory of bullet No. 2 wide open to doubt, the question now was: Could the Webley
revolver have been discharged accidently, as Mrs. Knowles had said? The Police experts doubted
that. The revolver had, they said, a double action safety which made it necessary first to pu11 back
the hammer and then press the trigger right back before it could be fired. Asked by the judge, if
the trigger had got caught up in Mrs. Knowles dress, would the weight of the revolver have been
sufficient to fire it? The experts said they thought not.
Bloodstains found on the chair, on which both Dr. and Mrs. Knowles had said the revolver had
been lying, were used to both support and discredit the accident theory. The defence claimed they
corroborated Mrs. Knowles story of being shot when she sat on the revolver; the presecution
pointed out that she must have been hit while she was rising. The large pool of blood by the chair,
the experts suggested, corroborated this conclusion.
There was yet another flaw. Dr. Knowles had stressed in his own defence that there was no
evidence of intent. As the law stood then, if malice or intention to cause death were lacking, the
crime could not be construed as murder.
LEGAL LANGUAGE AND LEGAL WRITING 89

But the judge found the evidence against Dr. Knowles overwhelming and he sentenced him to
death by hanging.
Sufficient money was, however, collected by his friends to enable him to appeal to the Judicial
Committee of the Privy Council, and Dr. Knowles was taken to London in March 1929.
Dr. Knowles appealed on four grounds: That the Ashanti court had no jurisdiction to try him
without a jury; that the case should have been transferred to the Gold Coast where a jury of
unbiased Whites Would have been available; that a grave miscarriage of justice had resulted
because there was no reliable evidence on which a jury could have convicted; and that the judge
had to throw the onus of proof on to the prosecution and, as a result, Knowles had found himself
in the position of having to prove his innocence.
The Privy Council quashed Dr. Knowles conviction, curiously enough on a ground that had not
been clairned in his petition. A substantial injustice bed occurred, the judges found, because the
trial judge had rnisdirected himself in that having set aside the possibility of an accident, he had
assumed the only alternative was murder. Not the slightest enquiry had been made, stated the
judges of appeal, into whether, assuming the shot had been fired by the accused, the act
arnounted to manslaughter and not murder.
The case did, however, show human nature in more favourable light than do most murder trials.
Though Dr. and Mrs. Knowles had been accustomed to quarrel bitterly during their married life,
when it came to the final show-down she loyally exonerated him of all blame if, indeed, any
blame in fact attached to him.
PART TWO
LEGAL WRITING
LEGAL DRAFTING
Drafting is one of the most important parts of the legal profession. A lawyer has to draft different
types of documents.

1. A legislative draftsman drafts statutes and rules.


2. An advocate drafts
(a) Notices
(b) Pleadings
(c) Coveyancing
(d) Reports
(e) Bylaws of Institutions
(f) Arbitration awards
3. A judge drafts judgments.

For an advocate drafting is of great importance because it forms the foundation of his cases. Any
error committed in drafting of notices, pleadings or conveyancing will have far reaching effects.
Therefore, a lawyer has to take extra care while drafting a document. He should not only see that
his drafting is correct, but also that it is effective. To achieve this, the lawyer should be properly
trained not only in the effective use of language, but also in the proper ways of drafting.

IMPORTANCE OF LEGAL DRAFTING


Intellectually, the draftsman's skills are the highest in the practice of law. Judges have to reach
decisions and record them in their judgments. Negotiators and advocates have to understand the
situation and record it in the pleadings or conveyancing. These documents survive and to draw
them up well requires an extraordinary understanding of everything they are supposed to
accomplish.
The "practice of law", as the term is now commonly used, embraces much more than the conduct
of litigation. The greater, more responsible, and delicate part of an advocate's work is in other
directions. Drafting instruments, creating trusts, formulating contracts, drawing wills and
negotiations, all require legal knowledge and power of adaptation of the highest order. Beside
these employments, mere skill in trying lawsuits, where ready wit and natural resources often
prevail against profound knowledge of law, is a relatively unimportant part of an advocate's work.
At a meeting held in London in January 1973, the Law Ministers of the British Commonwealth
noted the widespread shortage of expert legislative and legal draftsmen and the importance of
taking early steps to overcome this shortage. Additional evidence from other countries, including
the developed countries, indicates not only that this shortage is world-wide, but also that it extends
to the entire field of legal drafting.
The importance of legal drafting reflects two things that have been happening to the practice of
law:
1. The professional emphasis has been shifting from after-the-fact litigation to before-the-fact
planning.
2. The increasing complexity of modern life has been accompanied by an increase in volume
of legal problems and, more important, the proliferation of factual contingencies to which
the legal planner must address himself.
94 LANGUAGE AND THE LAW

The effect is the increasing need to specialise. The need for specialists in drafting derives from the
almost inevitable complexity of the subject-matter, especially when:
1. the instrument must be integrated into a system of instruments;
2. the technological, financial, social or political importance of the subject matter; and
3. the not always visible inadequacy of most lawyers as draftsmen.
Superior drafting requires a special type of temperament and training.
As Coode observes, The most determined will in the lawgiver, the most benevolent and
sagacious policy, and the most happy choice and adaptation of means, may all, in the process of
drawing up the law, be easily sacrificed to the incompetence of a draftsman. Poor draftsmanship
can cause confusion in many areas. It may cloud the purpose and intent of the proposed legislation
before enactment; it may encourage misinterpretation and misapplication by the bar; and, it may
affect both judicial and executive implementation of the law at national, state and local levels.

QUALITY OF LEGAL DRAFTING


Our professional concern with language assumes a normal competence in the traditional skills of
grammar and composition (and spelling), despite occasional evidence to the contrary. But we give
considerable attention to the legalese seeking some documentation of those vestigial excrescences
found in the stilted structure, meaningless anachronisms, multiplication of near-synonyms, and the
rest, most intensely illustrated in the form books.
Almost all legal sentences, whether they appear in judges' opinions, written statutes, or ordinary
deeds of sale, have a way of reading as though they had been translated from German by someone
who has a rather meagre knowledge of English. Invariably they are long. Invariably they are
awkward. The language of The Law seems almost designed to confuse and muddle the ideas it
purports to convey. That quality of legal language can be useful only if the ideas themselves are so
confused and muddled and empty that an attempt to express those ideas in clear, precise language
would betray their true nature. In that case muddiness of expression can serve very nicely to
conceal muddiness of thought. Today no other type of drafting is so muddy, so confusing, so hard
to pin down to its supposed meaning as the language of The Law. It ranges from the ambiguous to
the completely incomprehensible.
Our laws are spoken of as disgraceful, unworkmanlike, defective, unintelligible, abounding in
errors, ill-penned, inadequate, loosely worded, depraved in style, full of peculiar absurdities,
mischievous, baneful in influence. The technical skill of drafting is often below the mark. They are
uncertain, confusing, obscure, ill-expressed, ambiguous, over bulky, redundant, entangled,
unsteady, disorderly and complex.
Therefore, many solicitor firms abroad are trying to improve the quality of legal drafting.
Shearman and Sterling may be the first firm to have hired a writing teacher. Others have followed
the suit and hired English professors from the local Universities to teach the associates, Pulitzer
Prize-winning journalists to edit and rewrite briefs, motions and letters to lay clients.
Spence, the writing teacher hired by Shearman and Sterling agreed that the standard of legal
drafting is poor. What surprised him was that the advocates with whom he was working were one
of the brightest groups he ever had, and one of the most challenging, but their drafting was so
poor. He was optimistic that if the lawyers co-operate and take interest, they can easily improve.
But he observed that poor writing by lawyers is deeply ingrained.
LEGAL LANGUAGE AND LEGAL WRITING 95

DIFFICULTY OF LEGAL DRAFTING


One of the important talents that a draftsman must develop is foresight - an ability to visualise
people when they are doing the things that are spoken in a statute, or regulation, or private
document. Maurice B. Kirk suggests that one way of doing this is to suppose from time to time
that somebody has come to the draftsman, as a client, for advice after the document has become
effective. Here, the advice means what the client can or cannot do under specific circumstances.
The draftsman can test the practicability of his document by attempting to apply his tentative
language to a variety of hypothetical activities or situations. To illustrate this Kirk gives an
example of a provision in an ordinance containing the following provision:
Trucks and Buses, Prohibited: Trucks and buses are prohibited from entering into any county park
unless specific permission for the same is obtained from the Commissioner. Trucks and buses
having secured permission must park in areas so designated by the Park Keeper or Park Police.
From the point of view of good drafting, this section contains several mistakes.
1. The section is written in inanimate terms.
(a) Persons can be "prohibited from entering", trucks and buses cannot be.
(b) A person can park a truck or bus, a truck or bus cannot park itself.
2. The section also says impracticable things.
(a) Once the permission is granted, the truck or bus must be parked in the designated
area for at least some time.
Therefore, a student revised the section as under:
Trucks and Buses, Prohibited: A driver of a truck or bus shall obtain a permit from the
Commissioner before driving the truck or bus into a park. A driver shall park the bus or truck in
areas designated in the permit.
This is a substantial improvement. The provision regulates people, not trucks and buses. Further,
in general, the provision is drafted in singular. However, the revised provision does not answer,
among others, the following questions:
1. Is the principal duty "to obtain a permit" or a duty "not to enter a park without a permit"?
2. When does the driver realise that he needs a permit: before he drives a truck or bus, or before
he enters the park?
3. Must every person who drives a truck or bus into a park stop and park the vehicle for some
unspecified period?
4. If so, whether the driver must park the truck or bus in any one designated place for some
time, or must he park the bus or truck in each area so designated?
5. Does the word "areas" indicate that the Commissioner has a duty to designate at least two
areas for parking of trucks and buses?
6. Does the permit apply to any truck or bus that the driver operates, or does it apply only to a
specific bus or truck?
7. Does the permit apply to any park under the jurisdiction of the Commissioner, or does it
apply to a specific park?
8. Why did the draftsman turn around and the phrase "truck and bus" in the first sentence, so
that it reads "bus or truck" in the second sentence?
9. Should the Commissioner seek out the driver to issue permit, or should the driver seek out the
Commissioner to get the permit?
10. Is the permit intended to control entering a park or parking in a park or both?
96 LANGUAGE AND THE LAW

To correct these errors would require a redraft that is elaborate and long.
As observed by Conard, there are definite and positive goals to be attained by simpler statute-
writing. There are definite techniques which will help in attaining these goals. When the goals and
techniques are known to the profession, better laws will be written.
But, as observed by Stason legal drafting is like weather: often talked about, but seldom reformed.
Many lawyers seem only dimly aware that the profession is falling far short of its potential.
As Austin observes, what is commonly called technical part of legislation is incomparably more
difficult than what may be styled the ethical. In other words, it is far easier to conceive justly what
would be useful law, than to construct that same law that it may accomplish the design of the law-
giver.
Legal drafting must have the accuracy of engineering, because it is law engineering; it must have
the detail and consistency of architecture, because it is law architecture.

NATURE OF LEGAL DRAFTING


Drafting as Communication
Many draftsmen apparently do not realise that a legal instrument is both:
1. a crystallisation and declaration of rights, privileges, duties and legal relationships; and
2. a communication.
That a legal instrument is a communication is seen most clearly in statutes, rules, and regulations
and such dispositive instruments as wills. In these, the client plainly addresses instructions to
others. To be effective according to the client's intent, such an instrument must carry the same
meaning to those who will execute it as to the draftsman. This also seems to be true of bilateral
and multilateral instruments such as contracts. For all these instruments the ultimate audience
includes the courts and other agencies that may be called on to enforce them. Therefore, the
draftsman should respect and adhere to the principles of communication.
Basic Elements of Communication: The principles of communication are not a matter of legal
fiat, to be changed at the will of the draftsman. Common to all human efforts, they exist
independently of the law. Communication is based on the language habits of particular speech
communities. Language is founded on usage and, although in particular cases usage can be
violated or changed, to dispense with it altogether would make communication impossible.
In the written communication process there are four main elements:
1. the author,
2. the audience,
3. the written utterance,
4. the relevant context or environment.
An adequate scientific description of a comprehensible written language must take the audience
into account. More specifically, what the audience knows determines how explicit the language
must be to communicate the information effectively. Some writings can have relatively more
implicit language because the readers in that audience have the necessary knowledge base to make
inference from what is actually said to what meaning is intended, i.e., they can "read between the
lines". If, on the other hand, intended readers do not have such background knowledge, the writing
must be relatively more explicit to be comprehensible. This often means more words, longer
sentences and more content. This explains why it is sometimes necessary to increase the length of
a piece of writing in order to make it more comprehensible.
LEGAL LANGUAGE AND LEGAL WRITING 97

The "audience" for a legal document is the "user" of the document. We tend to think far too much
about the role of the legal document in prospective litigation, and therefore, tend to think too much
about the Court as the user of the document. For most documents, however, the initial user is a
layman. Therefore, the document must be drafted in a language understandable to the layman.

Drafting as Thinking
We have already seen that language is not only the chief means of communication, but also the
chief medium of thought. Almost all thinking, above a primitive level, is in words. This intimate
relationship between thought and its verbalisation is not always grasped. As Pierce wrote, "the
woof and warp of all thought and research is symbols, and the life of thought and science is the
life inherent in symbols; so that it is wrong to say that a good language is important to good
thought, merely; for it is of the essence of it." Language is functionally inseparable from the
patterns of thought that help to shape the relevant culture. Every language thus presupposes a
conceptual "grid" or "map" through all experience is received. To adjust the one is inevitably to
affect the other. The reasoning process is largely a process of thinking to one's self, not audibly to
be sure, but by means of mental activities which are essentially the same as those which
accompany speech.
For a long time past, thinking men have tended to adopt a somewhat patronising attitude towards
the words they use in communicating with their fellows and formulating their own ideas. This is a
most unfortunate attitude. Words play an enormous part in our lives and therefore, deserve the
closest study. The old idea that words possess magical powers is false. But its falsity is the
distortion of a very important truth. Words do have a magical effect - but not in the way that the
magicians supposed, and not on the objects they were trying to influence. Words are magical in
the way they affect the minds of those who use them. We sometimes say contemptuously, "A mere
matter of words", forgetting that words have power to mould men's thinking, to canalise their
feeling, to direct their willing and acting. Conduct and character are largely determined by the
nature of the words we currently use to discuss and the world around us.
This nature of language is of intensely practical importance to us as lawyers and quite directly
implicated in our vaunted objective of education to "think as a lawyer". A conscious, analytical
awareness of some of the fundamentals of the structure and functioning of language provides a
foundation for enhanced sophistication and effectiveness in the professional operations of the
practicing advocate, judge, legislative draftsman, legal scholar and law teacher. Our interest goes
beyond effectiveness of communication, reaching to the process of precise analysis. The structure
of language, mostly its abstractness and consequent indigenous vagueness, is such as to create a
world of its own, interposing a gap between itself and the underlying world of behaviour, setting
up barriers against effective handling of the problems of this real world of persons, things and
their interaction. We seek to achieve not merely a post-analysis of the process, but a foundation for
positive enhancement of the effectiveness of what we do as lawyers.
We apply this approach to the specific problems of legal drafting, with further examples as
presented in areas such as the structure of rules of law, the concept of property, the nature of legal
entities, legal fictions, pleading, problems of evidence, the process of examination and cross
examination, and what we call "factual advocacy". Thus, for example, after recognition of
language as more an analysis, interpretation and organisation than a picture of experience, we
perceive our rules of law as learned patterns of analysis, the products sometimes of centuries of
struggle in the resolution of competing social values. The idea of "black letter law" become not
merely pedestrian, but absurd and meaningless.
Therefore, ideally our study requires a full scale preliminary course in linguistics and some of its
philosophical and psychological ramifications. It may be superfluous to add that there is no area of
98 LANGUAGE AND THE LAW

the law to which this approach is not equally applicable. Nor, for that matter, to any are beyond
the law.
Further, there is a paradox in the matter of knowing and telling. For a reason hard to understand,
we do not seem to have a full grasp on the experience itself until we have symbolised it in some
fashion. We do not know until we have told. The telling may be done by many types of symbols -
spoken words, written words, musical notes, paints brushed on a canvas, and so on. But whatever
may be the kind of the symbols, it appears to be true that we do not really know our experiences
until we have expressed them. Yet, it is true that when we express, we express something. We do
not use words at random when we begin to write about an experience but instead seem to be
directed by our unexpressed consciousness of the experience to choose certain words and ignore
others.
Usually we say that "we know what we mean, but we cannot find the words to express it". But this
is not really true. What is true is that we know vaguely what we want to say, but we know it so
vaguely that we do not find words to express it". This brings the paradox close to resolution. If we
begin to describe the idea by testing one series of words after another, rejecting and altering as we
do so, gradually the vagueness of our understanding diminishes as "wrong" words are eliminated,
and as "right" or "nearly right" words are accepted. Thus we come to know the shape of our
experience through the process of using the words to describe it. Thus, we have had the experience
before we begin to express it; we know or understand it only when we find means to transform it,
internally or externally into some symbolic pattern.
The act of writing is composed of two gestures:
1. thinking-writing; and
2. writing-editing.

Thinking-Writing Gesture: It is working out of what the writer wants to say. This can be done
either in the mind or on the paper, though it is better to use paper for this. In either case, you find
out what you want to say in the process of saying it. How the process occurs depends upon the
individual style. It is not done with the awareness of an immediate audience. There are no rules for
making this first writing gesture. Each new writing task is unique, so that the writer must struggle
to find what he wishes to say again, again and again. This struggle is a distressing business.

Writing-Editing Gesture: The editing gesture comes between writing as a gesture and the
committing of the result to the public. The editing must occur because the results of the thinking
gesture will seldom be in clearly written language. The words have been shaped to help the
thinking not to help the reading. Since the word "editing" has so many different meaning, we may
put the proposition in another way. The editing-writing gesture involves our thinking about our
thinking from a potential reader's point of view. Editing requires a phenomenological abstraction
of self from the original writing gesture and then a shaping of that gesture guided by our
awareness of how people read.

Drafting as Research
The task of the legislative draftsman is to help resolve a problem by legislative means. To resolve
a problem it is necessary to understand it, to know as much as possible about the condition or
situation that gives rise to it. It is also necessary to know as much as possible about existing law
that has addressed or failed to address the issue. Although the draftsman will produce a draft of
legislation, he is more than a well-trained scrivener, he is the craftsman who shapes public policies
and ideas into a textually rigid form that can be enforced and given legal effect.
LEGAL LANGUAGE AND LEGAL WRITING 99

It is the theme of this paper that research and analysis are an integral part of legislative drafting,
that drafting is primarily a task of legal problem solving, and that the compositional aspects of
drafting, though of great importance, must be based not only on sound policy instructions, but also
on a sound understanding of the issues to be resolved.

Drafting as Learning
Writing also helps research. Research is inefficient unless we know what we are looking for, and
trying to express and systematise a fuzzy question helps us sharpen it. Writing a draft at an early
stage of the project helps sharpen the writer's sense of the relevant in time. The writer who tries to
do all his research before he starts to write often finds out later that he has researched many
irrelevant or insignificant things, thus wasting precious time, while he failed to research things that
came to light too late to handle adequately. It is good to find out the basic defects, and the earlier
the better. Besides, if he over-researches before starting to write, he risks snuffing out potentially
valuable insights of his own before they have had a chance to germinate in the delicate air of
intellectual innocence. He also risks creating a formidable psychological hazard by inundating
himself with detailed materials, distracting in their wide irrelevance, to the point of sapping his
will to write.
John Platt points out that some branches of science have moved forward very much faster than
others, because they have been using a method of scientific research called the "accumulative
method of inductive inference". Its gist is to exploit the indirect method of proof by developing a
range of alternative hypotheses and seeing which ones can be eliminated, through critical
experiment, as demonstrably false. Thus, no hypothesis is entertained unless it is potentially
refutable. This method provides for future testing, the sharpest possible hypothesis. This means
that the supportive research will be highly relevant, highly focused, and highly efficient. The result
is quicker and more useful results.
The lesson for legal drafting is clear. Do not try to do all your research first. Instead, begin to
write, or at least systematically organise your material, as soon as you have a fairly good idea of
what your problem is and a generous inkling of the answer. Indeed, the writer should repeat the
process whenever his later research accumulates enough material that it starts becoming
indigestible or hard to cope with. These phases correspond to the scientist's periodic switches from
hypothesis to verification to modified hypothesis.
While writing, the writer should use every chance to encourage talk-back. Thus, while writing a
document if the writer finds a big gap in his information, he does not stop writing and rush to the
library to find the needed material. Instead, he fills the gap with statements that blend logically
with his current information or argumentation. his gives him important, specific hypotheses that he
can test later. Most important, it heads off what could be a serious interruption. If the writer takes
the other approach, the insights that are perched precariously on the tip of his mind may be gone
by the time he comes back to his writing table. The same applies to minor imperfections of
spelling, grammar, or form. While the draft is talking to the writer, the writer should not fuss with
details; he should get the gist of its message on paper. Besides allowing the talk-back to continue,
careful interpolation or extrapolation will produce not only relatively not only relatively specific
hypotheses but ones that have the best chance of being verified.
If the legal writer follows this general approach, some of the talk-back will relate to the matters of
substantive policy that will make the final product a better instrument of the client's will.
Recognition of this contribution is likely to earn the writer an opportunity to participate earlier in
the development of substantive policy. Ultimately, good performance will elevate him to a more
effective position as a supportive participant in making policy.
100 LANGUAGE AND THE LAW

Until both draftsman and his client have a fuller appreciation of what a draftsman could do beyond
manipulating language, many an otherwise able draftsman will continue to be called in only at the
last minute to put an otherwise crystallised document into good "legal English".
But getting in early, by itself, is not enough. The draftsman should make sure that he ascertains
full scope of his client's problem and that he digs out and perfects the concepts implicit in it.
The most basic step is to develop at an appropriately early stage a severely hierarchical topical
structure called an "outline". Almost all books on composition advise this method, but none tell
how to conceptualise it. An attempt is made by Reed Dickerson in Chapter 5 of his book "The
Fundamentals of Legal Drafting". Prisig in his book "Zen and the Art of Motorcycle Repairing"
has also tried the same by diagramming and summarising the structure of a motorcycle. Reed
Dickerson considers Prisig's approach a better one than his own, and suggests that until a better
approach is found one should follow Priig's way of developing an outline. Therefore, he advices
that a student writer should practice the art by developing a hierarchical arrangement of the parts
of some complicated physical object. Another similar exercise would be to preare an organisation
chart of any local institution. But, as Dickerson observes, these exercises fall short of full
effectiveness, because, here we are concerned with observably discrete parts whose affinities are
already established. On the other hand, the concepts implicit in a problem are neither clearly
defined nor already sorted. Therefore, the conceptualisation of the relevant components and
determining the most significant affinities are much more difficult.

GENERAL DRAFTING STRATEGY AND ATTITUDE


RESEARCH
Research as a Drafting Tool

Only if the draftsman has the knowledge and understanding of the subject he is trying to resolve,
he can turn the general and sometimes vague policies into effective legislative language. This
knowledge halps the draftsman to anticipate the many situations in which the document may be
applied, and will help him to foresee questions of interpretation and construction. This knowledge
and information is acquired by the draftsman through research, both legal and substantive. Some
use of library, some use of special consultants, and some use of telephone to obtain information
from persons knowledgeable in the field. Each one has its own advantages and disadvantages. The
use of library takes more time. The use of telephone is likely to give more superficial results.
However, time is of less importance than accuracy. But some drafts are prepared under intense
pressure. Such drafts are often inaccurate and cause lot of trouble to the parties at a later stage.
The starting point of an advocate-draftsman must be the purpose of the parties. The parties will
join in a common purpose of attaining a specific factual or legal result which each regards
necessary to the attinment of his ultimate purposes. The ultimate purposes of each party may be
unrelated to the ulterior purposes of the other. The advocate-draftsman's ultimate obligation in
each case is to realise the common immediate purpose of the parties, neither of whom ordinarily
contemplates litigation. His job is to do what he can to get the parties from agreement to full
performance with the least risk of frustrating their common purpose. To that end, he has to take
the following three precautions:
1. Because the common purpose of the parties is usually a business one, the advocate-draftsman
must focus also on the factual situation. He must understand
(a) where each party is,
(b) where each party expects to be, and
(c) the process by which each party expects to get from where he now is to where he expects
to be.
LEGAL LANGUAGE AND LEGAL WRITING 101

2. He needs to know how each party came to be where he is with respect to the transaction.
Information on whether either party previously participated in a similar transaction is
especially important.
3. He must understand the factors which tend to foster or frustrate the transaction.

A body of transactional case law must be viewed from two perspectives:


1. Each case fills a gap by solving a problem the parties had not dealt with.
2. It represents an event or sequence of events that threatened the transaction on which the parties
pinned their respective hopes.
Because every threat cannot be identified, the advocate-draftsman cannot guarantee results.
Nevertheless, he, being an advocate, has a normal amount of skill in fulfilling transactional
purposes. Therefore, he must record that he presented each of these potentials for frustration even
though the transaction fails to reveal any response to each issue by the parties. In this way he
shows that he did what he could, as a professional, to get the parties from agreement to
performance with the least risk of failure.

Types of Research Problems: A statutory draftsman should keep in mind from the very
beginning that he cannot get all things for all persons. He must realise that there are some basic
limitations. He must immediately recognise these limitations and obtain appropriate assistance in
each case.

Fred J. Carman lists following eight problems as an illustration:


1. Extremely complex and age-old problem subjects: Here draftsman always requires expert
guidance. A team of experts are necessary for drafting this type of law. The draftsman should
never attempt to tamper the existing law on such subjects without consulting these experts. He
has a responsibility to badger information from other team members until he is positive about
each provision or change made is known, explainable and rational.
2. Legislations that require a creation or change of an existing mathematical or statistical
formula: Here also, the draftsman needs expert help.
3. Legislations that establish or recreate the ethical environment in which government
operates: These are the extremely sensitive areas where the draftsman may incur the highly
emotional fury of powerful political interests if he commits the following mistakes:
(a) Attributes a result to a particular provision which turns out to be even marginally
erroneous.
(b) Fails to maintain a thoroughly objective view in analysing proposed provisions.
(c) In offering solutions, fails to present all viable alternatives.
In such cases it is highly recommended that each problem perceived be carefully discussed
with another colleague, preferably one from the research staff. The research must consist of
careful analysis of all possible results and then be presented in a most tactful manner.
4. Appropriation Bills: Normally these are not drafted by the draftsmen. But wherever a
draftsman is invited to draft them, he must be
(a) schooled in fund accounting,
(b) familiar with the system of accounts involved,
(c) knowledgeable of the constitutional limitations of the government applicable to the money
matters, and
(d) specialised in fiscal matters to the extent possible.
102 LANGUAGE AND THE LAW

5. Criminal laws, revenue measures and other major subjects: They should receive
specialised attention. The practical considerations of available time vary from case to case. The
demand for man power is unlimited.
6. Confidential matters: In such cases, the draftsman does not get any assistance from a research
team or from experts. He, therefore, should warn the requester that the effect of the law is
unknown or in doubt. He must gather the material from the books, think about it continuously,
discuss it repeatedly with the requester. Once the Bill is introduced, he can get the assistance of
the experts or research team, and then he may effect the changes necessary to carry out the
intent of the requester.
7. Typical trivial request: The research warranted, if any, will be trivial.
8. Legislation intended to reorganise or recodify an area of law: For this purpose assistance of
computer may be taken.

Types of Research: The following are the types of research made for the above purposes:
1. Exploratory Research: Where the intended legislation intrudes into a field of extraordinary
policy complication. In such cases it is advisable to make preliminary search of the applicable
law with the purpose of marshalling the probable problems the request will entail. Then these
should be discussed with the requester. If the requester never intended such complications, he
may abandon the law.
2. In Depth Research: When extensive legal research is needed to carry out a particular request,
the requester should, at the first opportunity, be given a time estimate of when the research can
be completed. The impossible should not be attempted. If the projected research time frame is
unacceptable to the requester, alternative means of satisfying the requester may be sought.

ATTITUDE
It is sometimes said that every definitive legal instrument must be drafted so that no one reading it
in bad faith could possibly misunderstand it. Dickerson observes that this made a good sense so
long as courts were generally unfriendly to draftsmen. But now, the climate in which legal
instruments are judicially examined has greatly changed. Today, the Courts make an honest,
generally unprejudiced attempt to extract the meaning of an instrument as it would be understood
by a typical member of the audience to which it is addressed. The draftsman's main problem is to
say what he means according to the standards of communication in the relevant speech
community.
A draftsman no longer needs to go to abnormal lengths to reduce the risk that his instrument will
be misread. He may rely on the normal ways of reading language, even in the face of minority,
competing usages. The law now accepts, for the most part, the normal presupposition of
communication that language has been used in its usual sense. This presupposition is usually
valid, in and out of law, because usage is what makes language.
If there is a doubt in the mid of the draftsman as to how the reader will understand the draft, the
draftsman should be sure to tip the scale towards the meaning that he intends to convey. As long
as there is any significant possibility that his language will be misread by the typical reader, he
should try to remove the uncertainty or reduce it to relative insignificance. In such matters there
are few rules of thumb. There is no substitute for the judgment of an experienced draftsman
sensitive to nuances of text and context. He must have feeing for how specific language hits the
eye of a typical reader who has no access to the subjective intent except through the instrument
and its shared environment.
LEGAL LANGUAGE AND LEGAL WRITING 103

It is also said sometimes that the draftsman should leave nothing to implication. Dickerson
dismisses this also as nonsense. No communication can operate without leaving part of the total
communication to implication. Implication is merely the meaning that context adds to the literal
meaning. The draftsman may rely on any normal implication that attaches to the more significant
features of the message that he has made express. Draftsman cannot escape the burdens of normal
implications. The only problem is that implications, like express language, vary in clarity and
should be made as clear as reasonably possible without prolixity. Implications can be ambiguous
or vague. Thus, they suffer from the same diseases as language and, therefore, respond to the most
of the same cure.
Although context is a powerful tool for controlling meaning, the draftsman should not rely on it to
the point of being careless in the choice of words and specific syntax. Context should not be used
to resolve needless uncertainty or to correct needless error. The elements of communication should
support rather than contradict each other.
The draftsman should not seek the unattainable goal of clarity. He seeks the highest practicable
degree of clarity that gets the message across to the typical member of his audience and to the
sceptical reader in those situations in which courts want to be doubly sure that a probable result of
some severity was actually intended. If he can do this, he has sufficiently overcome the diseases
and other inadequacies of language.

Pride of Authorship
Editorial of American Bar Association Journal [1951 (37) ABAJ 209] used the phrase "pride of
authorship" in the more literal sense of legitimate pride in a job well done. More often, it is used in
the sense of overweening pride that prevents an author from accepting even constructive criticism.
A draftsman normally faces a lot of criticism when his work is published. People come up with
many alternative ways of writing what the draftsman has written. There are more suggestions and
advices than there are sentences in his drafting. Only some of them are constructive and useful.
The author should have an open mind to accept such criticisms and he should improve his drafting
and skills of drafting from these criticisms. A lawyer can only become wise by keeping his mind
open to criticism, by listening to all that can be said against his own views. It is only by patiently
hearing what can be said against his proposed draft by persons of all variety of opinion, that his
document ever begins to approach the superlative. If his work is good, it will stand on its own
merits. if bad, a wise author will listen and improve it.
An examination of early drafts of historic documents indicates that the final product was seldom
written at the first sitting. A jurist observed that before he finishes a law review article, he sweats
blood for a month. Pride of authorship requires a patient consideration and comparison of
constructive suggestions for improvement from every source. only when the finished product
meets the test of expert criticism can the author feel justly proud. Pride of authorship will always
mean sweating blood.
A legal draftsman usually sheds the disability of "pride of authorship" when he fully realises the
benefits of cross-checking with others. As Dickerson observes, it is certainly far better to receive
criticism before issuance or execution than to receive it afterwards. He suggests several ways to
generate needed criticism. One is the "buddy" system, in which the person responsible for the
instrument has it reviewed by a colleague. A supplementary rather than alternative method is to
submit the tentative result to a small panel of knowledgeable persons assembled to discuss the
instrument. However, Dickerson opines that drafting by committee should be avoided. In case of a
legislative drafting, as a final check, it is often desirable to circulate the draft to a carefully
selected sample of the kinds of persons most likely to be affected by the legislation.
104 LANGUAGE AND THE LAW

STYLE IN LEGAL DRAFTING


The words used in a legal writing and the way in which they are used express the lawyer's
personality and capability and give the writing what is called its style. Style, in writing as in other
walks of life, is a quality peculiar to the individual, for no two persons write alike. It is determined
by background, training, experience and the way the person thinks. Being so much a personal
matter, it cannot be copied, nor are there any set of rules for acquiring it. Nevertheless, there are
certain characteristics common to all good writing. Just as there is style in literary writing, there is
style in legal writing, and in any summary of its desirable elements correctness, propriety, clarity,
simplicity, courtesy and sincerity must certainly have a place. To these must be added an adequate
vocabulary. Without a competent knowledge of words and a sufficient mastery over their use, it is
not possible to weave the desirable elements of style into the fabric of a good document.

1. Correctness: The writer must use correct words to express the thoughts. His grammar must be
correct. Use of wrong words or wrong sentence construction will make the communication a
failure. We have already discussed how important it is to achieve identification of thoughts
and words. In the next few paragraphs we can see how wrong words or grammar causes
problems of meaning.
2. Propriety: It is not sufficient if the words used by the writer are correct. Further, they must be
proper. We have already discussed about eulogistic and dyslogistic terms, and about bias
words.
3. Clarity: When we write a document we owe it to the reader to write clearly and make his task
of comprehension as easy as possible. We fail in this if we abandon simplicity. We must first
be clear about what we want to say, and then say it in a simple and straightforward way. Clear
writing and clear thinking go hand in hand, and a person who thinks straight is usually able to
write straight. It is an excellent idea to jot down the points to be written and to place them in
order. Planning helps to produce the orderly kind of writing that creates a good impression
because its message is clear. If the reader has to read the document for the second time before
understanding it, probably it is not a good drafting.
4. Simplicity: If it is appropriate the short word is preferable to the long. It draws less attention
to itself as a word and enables the reader to concentrate attention on the idea denoted by it. It is
in this sense that vocabulary is an important element in style. High sounding words and
phrases are to writing what ostentation to dress - merely means of attracting attention and
showing off. They reveal the writer for what he is - superficial, conceited and certainly lacking
in good taste.
One cause of bad legal writing is the mistaken notion that long words and roundabout phrases
are a mark of education. Another is the idea that brevity is a form of rudeness and that courtesy
requires simple facts to be dressed in fancy language. Legal writing calls in fact for a plain
style - a style that is simple, clear and easily understood. One that makes use for the most part
of short and familiar words. Such is the style of much of our greatest literature and the works
of our best authors.
5. Courtesy: Not only must the writing be correct, simple and clear, it must also be courteous. In
the rush of modern life this is sometimes forgotten. There are people who regard bluntness as a
token of strength, when it is in fact a sign of bad breeding. Courtesy gets the works done.
Courtesy of an advocate puts the reader in a more reasonable and even in a favourable frame
of mind, which is very important for an advocate.
6. Sincerity: Whether a person is writing a piece of literary composition or a legal document, he
needs to write with sincerity. In other words, he must be himself and not the imitation of
LEGAL LANGUAGE AND LEGAL WRITING 105

someone else. One may find little scope for originality in legal writing, as there are rules and
forms to be followed. Even so, it must have originality of the sort that expresses the thoughts
of its writer in his own words in his own way. If all legal documents were modelled to a set
style they would make a dreary reading.

IMPORTANCE OF STYLE IN LEGAL WRITING

A lawyer writes for much smaller group of readers than any other professional author. His
"editions" are limited. Consciousness of the restricted circulation of his works sometimes begets a
costly carelessness in matters of rhetorical style. So long as the instrument appears to express the
lawyer's thoughts, there is a temptation to release it without rewriting, condensation and polishing.
But the outstanding legal writers have preferred to revise, and revise, and then revise again. Justice
Cordozo found that phrases, like diamonds, required laborious polishing to achieve a brilliant
lustre. Justice Brandis often rewrote a judgment a dozen times. Frankfurter is known for revising
his judgements. In one occasion there were fifty-three revisions.
As Schopenhauer observed, law of gravity is applicable to written communication. Ideas flow very
easily from head to paper, but not so easily from paper to head. Too often, a document written
with careless ease can be read only with painstaking difficulty. If the advocate's brief is to impress
the court and incline the court to his views, it is important to take time and pains to assure that
your documents will have certain style.
We do not expect the lawyers to produce great literary pieces. But their writing must be lucid.
each paragraph should persuasively invite further perusal.

THINGS ONE SHOULD LEARN IN LEGAL WRITING


Ronald Goldfarb lists eighteen things one should learn in legal writing. While he mentions each
point, he illustrates the point in the same sentence.
1. Don't use no double negatives.
2. Make each pronoun agree with their antecedent.
3. Join clauses good, like a conjunction should.
4. When dangling, watch your participles.
5. Verbs has to agree with their subjects.
6. Don's use commas, which aren't necessary.
7. Try not to ever split your infinitives.
8. Its important to use your apostrophe's correctly.
9. Don't write run-on sentences they are hard to read.
10. It behoves the writer to avoid archaic expressions.
11. Don't use hyperbole; not one writer in a million can use it effectively.
12. Avoid clichs like the plague.
13. Mixed metaphors are a pain in the neck and should be thrown out the window.
14. A truly good writer is always especially careful to practically eliminate too-frequent use of
adverbs.
15. Placing a comma between subject and predicate, is not correct.
16. Parenthetical words however should be enclosed in commas.
17. Correct spelling is esential.
18. Always proofread your copy to see if you any words out.
106 LANGUAGE AND THE LAW

CONSISTENCY
The most important single principle in legal drafting is consistency. Consistency means
uniformity. The writer must remember two rules in respect of consistency:

1. Same words should be used to describe the same fact or to express the same idea.
2. Different words should be used to describe the different facts or to express the different ideas.

Conversely,
1. Different words should not be used to describe the same fact or to express the same idea.
2. Same words should not be used to describe the different facts or to express the different ideas.
The breach of these rules are described by H.W. Fowler in his acclaimed work Modern English
Usage as under:

Elegant Variation: Some writers who give more importance to prettiness than to clarity and some
writers whose notions are based on a few misleading rules of thumb, are those who are chiefly
open to the allurement of elegant variations. They are at first terrorised by a misunderstood taboo.
They are, at a young age, advised not to use the same word twice in the same sentence - or within
next twenty lines or other limit. Therefore, they start hunting for different words to express the
same idea in the same sentence or so. After some time, they are fascinated by their newly
discovered ingenuity. Ingenuity of expressing the same idea in so many different ways. By the
time when they come to know that what they are doing is not particularly right, they are addicted
to the incurable vice.
Legerdemain with Two Senses: It is the using of a word twice without observing that the sense
required the second time is different from that already in possession. Fowler gives the following
example to show the point:
The inhabitants of the independent lands greatly desire our direct government has, however, for
years refused to take any strong measures.
In this example, the first "government" means governance or administration, and the second
"government" means governing body. No doubt, either word is a synonym for "government", but
not both to be represented by it in the same sentence.
Such shiftings from one sense to another naturally occur sometimes in reasoning, whether used by
the disingenuous for the purpose of deceiving others, or by the over ingenuous for the purpose of
deceiving themselves.
When the same word signifies two ideas which are close to each other or overlap, confusion and
obscurity are probable. Ogden and Richards call this fault "utraquitic subturfuge". In law
sometimes its effect is remarkable. Zechariah Chaffee, gives the following example:
A case involves a serious misstatement of fact. But it is not clear that the speaker knew of the
falsehood or intended to deceive. The advocate begins by calling innocent misrepresentation
"constructive fraud". After a while the word "constructive" drops out. Later on he cites a number
of cases of intentional misrepresentation which stress the wickedness of "fraud". "Fraud" is an
emotive as well as a communicative word. The effect is the speaker's knowledge of falsehood is
treated as irrelevant, and the judge is lead to conclude that an innocent misstatement should be
heavily penalised because "fraud" is a vicious quality.
Apart from such bad practical effects, the breach of above rules is a fault of style.
LEGAL LANGUAGE AND LEGAL WRITING 107

BREVITY
Being brief is a virtue. Siegel observes that wordiness is the natural enemy of clarity. Language
simplification process often leads to shorter ways of saying things. Brevity is a virtue for the
following reasons.
1. It saves the time and patience of the reader. Many people will be reluctant to read lengthy
documents.
2. When we say things in roundabout ways the meaning will become unclear. The author himself
many times found to write contradictory things. Thus lengthy explanations end up in many
mistakes. Brevity reduces some such mistakes.
3. When we write more things that are already familiar to the reader, the reader normally loses
interest in the matter he is reading. He may stop reading. Even if he continues reading, the
reading becomes more mechanical and the reader less receptive. At this stage if reads
something which is important, he may not be able to grasp it.
Wordiness takes many forms. The following are the usual ones.
1. Use of synonyms and tautological expressions: Normally in law the following phrases are
used. "Alter and change", "authorise and empower", "sole and exclusive", "null and void", etc.
Dickerson suggests the choice of the more familiar one and to stay with it. In some cases, it
would be advisable to choose the more appropriate one rather than a more familiar one.
Examples of tautological expressions are, "The provision affords women the same equality as
men." ("same" and "equality"); "The application of the provision is not limited only to the
motor vehicles." ("limited" and "only"); "It is wrong to assume that speed and speed alone is
the only relevant factor." ("and speed alone" and "only"); "The new amendment adds three
additional provisions." ("adds" and "additional"). Tautology often arises from the mistaken
notion that forcibility and emphasis are thereby attained, oftener perhaps from a faulty
appreciation of the true and full significance of words.
2. Use of pairs of words or expressions one of which includes the other: For example,
"authorise and direct". When one is directed to do some thing, naturally he is authorised to do
that thing. Thus when the owner directs his agent to sell his property, the agent need not be
separately authorised. Therefore, the words "and authorise" are mere surplusage, and therefore
should be deleted. Such writings are not only unnecessarily wordy but may create uncertainty
as to which term is intended to be controlling and which, consequently, is surplusage. The best
guide here is simply to exclude words or expressions that contribute nothing to the legal
message. For example, "It is herein provided that, ..."
3. Repetition of numbers in figures and words: For example, 60 (sixty); Rs. 100.20 (Rupees
one hundred and paise twenty only). Edward Vanneman finds this an unnecessary practice in
the modern times. According to him, it shows the inference that the reader does not understand
Indo-Arabic number syste. He sarcastically observes that we do not repeat numbers in figures
and words when we write them in Roman system. Thus we do not write IV (fourth).
4. Overspeciality: In law again, we tend to write too many details which are not really necessary.

However, we must remember two things:

1. As observed by David Cavers, brevity is a virtue when it saves the reader's time and patience.
Many times longer passages are understood quickly than shorter ones.
2. In many cases it may prove vital to explain compels legal concepts fully and precisely. The
objective is to provide clients with as complete a picture as possible of their rights and
obligations.
108 LANGUAGE AND THE LAW

OVERSPECIALITY (DETAIL)

Another common defect in legal writing is over-speciality or giving too many details,
unnecessarily. Plain Wayne illustrates this through a 'gift of an orange'. When an ordinary man
wants to give an orange to another, he would merely say, "I give you this orange". But when a
lawyer does it, he says as under:

Know all men by these presents that I, Shri __________, s/o __________, __________, Aged about
__________ years, occupation __________, resident of __________, hereby give, grant, bargain, sell,
release, convey, transfer, and quitclaim all my rights, title, interest, benefit, and use whatever in, of, and
concerning this movable property, otherwise known as an orange, or citrus orantium, together with all
the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice, to have and to hold the said orange
together with its skin, pulp, pip, rind, seeds, and juice for his own use and behalf, to himself and his legal
heirs, legatees, administrator, executor, assigns, agents, servants, forever, free from all liens,
encumbrances, easements, limitations, restrains, or conditions whatsoever, any and all prior deeds,
transfers or other documents whatsoever, now and anywhere made to the contrary notwithstanding, with
full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its
skin, pulp, pip, rind, seeds, or juice.

COMMANDING, AUTHORISING, FORBIDDING, NEGATING

George Coode in his celebrated work "Coode on Legislative Expression" observes that in English
the words 'may' and 'shall', with their negatives, are exclusively the proper auxiliaries of the
enacting verb.
1. If a right, privilege or power is to be conferred, the appropriate copula is 'may' or 'may not'.
2. If a right, privilege or power is to be abridges, the appropriate copula would be 'may not'.
3. If an obligation is imposed to render any duty, the appropriate copula is 'shall'.
4. If the obligation is to abstain, the appropriate copula is 'shall not'.
5. If the purpose is to affect the legal subject with a liability or sanction, the appropriate copula
would still be 'shall'. When the subject is to be active, the whole enacting verb will be active,
'shall forfeit', etc., and where the subject is to submit, or to be passive, the whole enacting verb
will be passive, as 'shall be imprisoned', etc.

Reed Dickerson observes that the problems of 'shall', 'may' and 'must' are best seen against the
broad spectrum of creating or negating rights, legal authority, duties, or conditions precedent. For
these basic legal contingencies Dickerson finds the following conventions to be lexicographically
sound:
1. To create a right, say "is entitled to".
2. To create discretionary authority, say "may".
3. To create a duty, say "shall".
4. To create a mere condition precedent, say "must".
5. To negate a right, say "is not entitled to".
6. To negate discretionary authority, say "may not".
7. To negate a duty or a mere condition precedent, say "is not required to".
8. To create a duty not to act (i.e., a prohibition), say "shall not".
LEGAL LANGUAGE AND LEGAL WRITING 109

TENSE
The tense in which a document plays an important role in its interpretation. Because the provisions
of continuing effect speak as of the time when they are read, they should be written in present
tense. But, when it is necessary to express time relationship, facts precedent to the operation of the
instrument should be recited as past facts.
Lawyers draft the following types of documents:
1. Statutes: Statutes tell us the present law. Therefore, they are drafted in present tense.
2. Notices and Pleadings: In notices and plaints, the facts which have already taken place are
mentioned. Therefore, they are narrated in past tense. But the facts which lead to the cause of
action are written in present tense to show that the cause of action is surviving.
3. Conveyancing: Deeds are written in present tense, as they effect the transaction between the
parties. But in case of memoranda such as Memorandum of Oral Gift or Memorandum of
Oral Partition must be written in past tense, failing which they will be construed as deeds.
Thus a Memorandum of Oral Gift will become a Gift Deed and Memorandum of Oral
Partition will become Partition Deed. Whereas the memoranda need not be registered, the
deeds must be compulsorily registered if the fall within the purview of sec. 17 of the
Registration Act.

MOOD
The words 'shall' and 'shall not' normally imply that to accomplish the purpose of the provision
someone must act or refrain from acting. Draftsmen often use these words merely to declare a
legal result, rather than to prescribe a rule or conduct. In this usage the words 'shall' is not only
unnecessary but involves circumlocution in thought (false imperative). The purpose of the
provision is achieved in the very act of declaring the result. Still worse, the use of false imperative
may create a doubt in particular cases whether the result is self-executing, as it is in a declaratory
provision, or is effective only when the required action is taken.
The draftsman should, therefore, use indicative mood in declaratory provisions.

Thus,
1. He should not say "The term 'person' shall mean ... ", he should say "The term 'person' means
...".
2. He should not say "The equipment shall remain the property of the lessor", he should say
"The equipment remains the property of the lessor".
3. He should not say "No person shall be entitled ...", he should say "No person is entitled ...".

Similarly, draftsman should avoid subjunctive mood and use indicative mood for putting
conditions. Thus, he should not say, "If it be determined that ...", but should say "If it is
determined that ...".

VOICE
Experts on readability normally agree that language in which passive voice is predominant is
harder to read than language in which active voice is predominant. Therefore, active voice is
preferred to passive voice. Active voice also helps to avoid ambiguity by forcing the draftsman to
name the person, if identifiable, who has relevant duty, right, power or privilege.
110 LANGUAGE AND THE LAW

But that does not mean that one should not use passive voice at all. If there is good reason for
using passive voice, there is nothing wrong if one uses it. Sometimes it is not feasible or desirable
to identify the person charged with a duty, the recipient of a right or discretionary authority, or the
person from whom a right or discretionary authority is withheld or withdrawn. In such a case
normally passive voice is preferred to active voice. For example,
1. "The by-stander shall be treated as if he were consumer." (to create a duty in an unnamed
person).
2. "The applicant may not be required to pay the fee." (to negate authority in an unnamed person).
3. "A mobile home shall not be moved on a public highway, unless ..." (to create a duty not to act
in the unnamed person).

GENDER

There are two views regarding the use of gender-specific terms in legal drafting.
The persons belonging to the first group argue for avoiding the gender-specific terms. They advise
the use of following forms, among others:

1. Do not say: "The administrator or his designee shall complete the evaluation form"
Say: "The administrator or the administrator's designee shall complete the evaluation form"
(Somehow, the author has forgotten that the term "administrator" itself is a masculine term).

2. If it is not possible to adopt the above form, then use:


(a) "She or he", "she/he" instead of "he"
(b) "Him or her", "him/her" instead of "him"; or
(c) "His or her", "his/her" instead of "his".

3. Avoid gender specific titles such as "Chairman" or "Chairwoman", use gender neutral titles
such as "Chairperson".

The other group argues that this is an unnecessary exercise. Their argument is based on the
following grounds:

1. The word "man" has two meanings.


(a) a humanbeing, a person, a member of the human species of either sex; and
(b) a male adult humanbeing.

Most of the times we use the word in the first sense. "Mankind" means "humankind".
"Womankind" is not such a wide term. "Mankind" includes "womankind". The consistent use of
the terms like man, he, him, his, etc. have made the terms gender-neutral. Therefore, we should
not construe these terms as applicable to masculine gender only.
Nothing is so opposed as "day" and "night". Yet there is a sense, as when we speak of "three days'
journey", in which "day" includes night. "Man" is used in contrast to woman, but occasionally as a
term including woman. A similar shift of sense is perceptible in "he" and "she" - as an arguer also
woman is "he". We say a child is two years old (not young), just as we inquire how long (not
short) one will stay, or how far (not near) is the station, etc.

2. In many words such as "swordsman", "penman", "policeman", "chairman", the unstressed form
'man' is no longer a word at all, but, in effect, a derivational suffix with meanings of, roughly, "one
LEGAL LANGUAGE AND LEGAL WRITING 111

who is skilled in the use of something" (a sword, a pen) or "one who is connected with some act"
(policing, chairing).

3. It is better if one can avoid gender-specific terms without contorting the sentences. But the
lawyer must not forget that his overriding objective is to express an idea as clearly and simply as
possible, not to pursue a social ideology, no matter how lofty it may be.

NUMBER

So far as substantive meaning permits, it is desirable to use the singular rather than plural. This
will avoid the question whether the predicate applies to each member of the subject class or jointly
to the subject class taken as a whole.
For example, "Certificates will be issued to the members of the teams securing first three places".
Whether there will be three certificates to the three teams or will there be one certificate each to
every member of the three teams? To avoid such ambiguities we should write either "One
certificate each will be given to the teams securing first three places" or "One certificate each will
be granted to every member of the teams securing first three places".
If it is necessary to use plural, the draftsman can change to the singular, whenever desirable, using
the following device.
For example, "Employees who have earned 15 or more point credits are eligible for positions
under sec. 9. Such an employee...
When the number is a matter of indifference, the simplest form that makes this clear is neither
singular nor plural, but the generic.
For example, "Proof of hardship may be by affidavit, i.e., by one or more affidavits"

PROVISOS

Coode calls a proviso a bane of all correct composition. According to Coode, it is most desirable
that the use of provisos should be kept within some reasonable bounds. He lements that the abuse
of provisos has become universal.
Formerly provisos were used in an intelligible manner. Where a general enactment was preceded,
but a special case occurred for which a distinct and special enactment was to be made, different
from the general enactment, this latter enactment was made by way of proviso. The courts,
therefore, try to construe a proviso in the same manner, that a proviso is a mode of enactment by
which the general operation of a statute was excluded in favour of some case. But when the
draftsman does not use the proviso in the same sense, the confusion arises. Therefore, it is
advisable to express exception in the part of the sentence to which it relates rather than as a
proviso at the end of the sentence.
Traditional Use of Provisos: Many traditional forms of documents use provisos. No doubt, we can
avoid the use of provisos in them. But Cood's objections do not apply to a proviso in a clause if its
purpose is to state circumstances in which the operation of the clause is terminated or modified
and something else substituted.
Provisos Open to Objection: In some agreements, provisos are used unnecessarily. They are used
where a normal form of agreement would do. In some cases provisos are used to confer powers,
etc. Such uses are obectionable as that is not the function of a proviso.
112 LANGUAGE AND THE LAW

WORDS AND PHRASES TO AVOID


The legal draftsman, like any other author, should avoid the use of clichs, weakeners, and
needless circumlocutions. Following are some of the words and phrases which Frank Cooper
mentions as dangerous for they may cause needless litigations.

Weakeners
In legal drafting, the lawyer has to state many facts. Because of professional cautiousness about
making any flat and dogmatic statements, many legal draftsmen sprinkle their prose with so many
qualifying safeguards that convince the reader of the writer's uncertainty. Among such weakeners
are:
1. Very: Often one calls something "very good" only because he cannot think of something better
to say about it. When an orator says he will speak for a few minutes, it is often a signal that his
speech will be long.
2. I am sure that : This is often said when the speaker is uncertain about the matter.
3. As a matter of fact: The reader immediately wonders whether it is really a fact at all.
4. To tell the truth : This indicates that the writer fears he is suspected of falsehood.
5. It is obvious, or It is clear, or It is plain, or Of course : Such phrases have associations of guilt.
Many times advocates use them in attempts to gain credence for assumptions of fact which are
not supported by evidence, or rules of law which are not supported by precedent.
6. Nearly, Practically, Substantially, In effect : These label the statement as being at least a least a
little bit false.
7. We hope to prove : This indicates doubt. It is ordinarily better to say "We shall prove".

Weasel Words
Weasel is a small, fierce animal with red-brown fur which sucks the blood of rats, rabbits, birds'
eggs, etc. on which it lives. A weasel word is a word which sucks the meaning of the words which
are near it. American Bar Association Journal defines it as a "word which sucks the very life and
content out of those near it, leaving only an empty shell."
The most obvious examples are if practicable, all reasonable means, or as soon thereafter as may
be.

And/Or
"And" gives a conjunctive while "or" gives a disjunctive meaning. A combination of the two in the
form of and/or is often confusing. It is criticised as devoid of meaning as it is incapable of
classification by the rules of grammar and syntax (American General Insurance Co. vs. Webster).
In Employer's Mutual Liability Insurance Co. vs. Tollefsen, Justice Fowler called it "Janus-faced
verbal monstrosity", while in Minor vs. Thomasson, it was called "interloping disjunctive-
conjunctive-conjunctive-disjunctive-conjunction".
But there are also supporters of its usage. They are called "andoreans". Andorians support the use
of and/or for it helps to achieve brevity. Thus A and/or B means either A or B or both. But the anti-
andoreans do not find this small reward sufficient to counter balance the confusion that can be
created by its use.
Meaning of "A and/or B": In Millen vs. Grove, a notice to quit under the National Security
(Landlord and Tenant) regulations gave as ground that the premises were reasonably required by
the lessor "for her personal occupation and/or for the occupation of some person who ordinarily
LEGAL LANGUAGE AND LEGAL WRITING 113

resides with and is wholly or partly dependent upon her". Gavan Duffy, J. deplored the use of
and/or, but held that the notice substantially stated the two grounds provided for in the
Regulations, viz., the premises being required for her personal occupation and for the occupation
of some person, etc.
Meaning of "A and (or) B": Though very rarely, sometimes "A and/or B" is expressed as "A and
(or) B." In Furness vs. Tennant, the obligation to load "a full and complete cargo of sugar in
hogsheads and (or) bags, or other lawful merchandise" was held to be discharged by loading a
cargo of sugar either in hogsheads or in bags, or partly in hogsheads and partly in bags.
Meaning of "of A, B and/or C": The confusion caused by the use of and/or is evident in such
cases.
In Cuthbert vs. Cumming it was held that it meant any one of the following
1. "A, B and C" or
2. "A and B" or
3. " C alone",
but not "A or B alone".

The logic behind it seems to be that the court read "A, B and/or C" as "(A, B) and/or C".
In that case the contract was "to load a full and complete cargo of sugar, molasses and/or other
lawful produce". Alderson, B. held that the parties were to load a full and complete cargo either
1. of sugar and molasses and other lawful produce, or
2. of sugar and molasses or
3. of other lawful produce.
But in Stanton vs Richardson, the Court gave a different meaning to the same phrase. In this case
the Court held that "A, B and/or C" included "A alone". Accordingly, "A, B and/or C" meant any
one of the following:
1. "A, B and C" or
2. "A alone" or
3. "B alone" or
4. "C alone".
The logic behind this construction seems to be that the court read "A, B and/or C" as either "A, B
and C" or "A, B or C".
Thus, on a charterparty by which a ship was to load a cargo of "sugar in bags, hemp in compressed
bales and/or measurement goods", it was held that a cargo made up only of sugar in bags was
within the contract.
Use of Multiple And/Or: Many documents make use of more than one and/or in a series of terms.
For example, A and/or B and/or C. This type of expression would be presumably intended to
mean:
1. "A", "B" and "C" or
2. "A alone" or
3. "B alone" or
4. "C alone" or
5. "A and B" or
6. "B and C" or
7. "A and C".
114 LANGUAGE AND THE LAW

However, this is not free from difficulty. As in the case of "A, B and/or C", here also there is
possibility of diverse opinions. We cannot be very much certain that the Courts will arrive at "A
and C" as one of the interpretations of the term.
More difficulties are caused by more and/or's in the series. An instance of such case can be quoted
from an article which appeared in the February 1933 issue of ABAJ. The article used a phrase
"controversies between a State and/or its citizens and another State and/or its citizens". This is in
the form "A and/or B and C and/or D". Can a court extract "A and D" as one of the meanings?

Objections to the Use of And/Or: Apart from the confusion caused by the use of and/or in such
cases, the following are the other grounds of objections to the use of and/or:
1. And/or disturbs run of sentence: The objections to and/or, even when its meaning is not in
doubt, are twofold.
First is its representation with the sloping sign and its pronunciation. This objection would
disappear if it became both in writing and speech "andor".
The second objection is to the jolt it gives the reader. To use one word as a conjunction and a
disjunction at the same time does not make for clearness. "And/or" may be a much less
simple formula to fit into the meaning of a sentence than such a phrase as "with or without".
To pass and repass "with horses, and/or cattle and/or sheep" are words not quite so easily
understood as to pass and repass "with horses, cattle and sheep or any of them". So it is that a
sentence that otherwise runs smoothly may suddenly hold up its reader even by one "and/or",
and if there are several he may make a long pause before he can take in all the possible
meanings.
It is the draftsman's duty to be clear as well as to be brief. Anything that takes his reader's
attention from the straightforward run of the sentence is against a ready impression of
clearness.
2. It is easy to commit mistakes while using and/or: The use of and/or not only confuses the
reader, but quite often it confuses the writer himself. Thus it is easy to commit mistakes with
the use of and/or as the following instances illustrate:
(a) And/or alters meaning: A definition was worded as follows: "Service of the company, in
the case of an employee who became engaged in war service before the commencing
date, includes the period in which he was engaged in war service before and/or after that
date." It was intended to exclude a period of service wholly after the commencing date,
but the "and/or" brought in such service. In place of the words "before and/or after that
date" it should have been written "whether wholly before that date or both before and
after that date".
(b) And/or does not add to the meaning: A Managing Director of a company wrote, "any
further increase in costs of land materials and/or taxation will reduce the net return". He
needed to say no more than that an increase in the costs of land materials or taxation to
have the same result. The and has no significance.
(c) And/or implies an impossibility: An insurance policy read: "If the ship is totally
destroyed by fire in the Pacific Ocean and/or Mediterranean ...". A ship which is totally
destroyed in the Pacific Ocean cannot again be destroyed in the Mediterranean, and vice
versa. Therefore, and shows an impossibility. It is sufficient to say "Pacific Ocean or the
Mediterranean".
The above illustrations are sufficient examples of the doubts and difficulties, and often absurdities,
that arise from the use of the expression "and/or". In some contexts it causes no doubt and is quite
in place. It is then shorter than any of its alternatives, and makes the statement brief. But before
LEGAL LANGUAGE AND LEGAL WRITING 115

using it, the writer should consider all its possible meanings in the given context, and see whether
all of them fit the facts. Similarly, a careful reader is also put to the trouble of making sure that he
has taken in all the meanings that are implied. With its liability to doubt and absurdity, it is a
phrase best left unemployed by anyone who is responsible to his client for the accuracy of what he
writes.

Legalese

Non-lawyers, however educated they may be, frequently complain that they do not understand
"lawyer's language". Often, the language is not understandable to other lawyers also. This is
mainly because of the use of highly technical terms.
It is sometimes tempting to use long words and to parade one's legal learning. About half a century
ago, an English lawyer stated that Utopia will come into existence when "an educated man will be
able to understand the language of his own deeds and of the laws by which he is governed.
An unaccountable characteristic of legal drafting is the gratuitous and wholly unnecessary
interpolation of "such" and "said". It is strange that lawyers use these words too frequently in their
writing, but not in their normal conversation. Other writers than lawyers do not use these words.
The use of these words are sometimes wrongly made. Thus, 'such' means 'that kind of' and
connotes class or quality, but it is carelessly used as a synonym for 'said' even by highly
intellectual lawyers.
Another instance of legalese is the use of words which declare faith. Some such terms are "I
believe", "I think", "it seems to me" and "it would seem". These expressions are intended to
emphasise sincerity of the lawyer's belief in his argument. Instead of assuring the judge about the
sincerity of the lawyer, they rather rub the judicial ermine the wrong way. It is taken for granted
that a lawyer would not urge upon the court an argument in which he did not believe. Therefore, as
Mortimer Levitan observed , declarations of faith are commendable in their place, but brief is
simply not the place.

Periphrasis
Periphrasis, also called circumlocutions, is the putting of things in a roundabout way. "In Paris
there reigns a complete absence of really reliable news." is a periphrasis for "There is no reliable
news in Paris".
According to the users of periphrasis, the existence of abstract nouns is a proof that abstract
thought has occurred. Abstract thought is a mark of civilised man. Therefore, periphrasis and
civilisation are inseparable.
Signs of nouns depending on one another and the use of compound prepositions are the most
conspicuous symptoms of periphrasistic malady. Therefore, writers must be careful to watch for
their occurrence in their own writings.
Some common examples of compound prepositions are, "inasmuch as", "in connexion with", "in
order to", "in relation to", "in so far as", "in the case of", "in the matter of", "with regard to", etc.
Some of these are much worse in their effect upon English style than others, but on the whole,
they are almost the worst element in modern English, stuffing up what is written with a compost
of nouny abstractions. Young writers are often attracted by these and feel that they bring an
expansive sense of power to their writing. But later they know better and then understand that it
gives feebleness to their writing than power.
The commonest periphrases are those formed the aid of colourless abstract nouns; e.g., the plain
adjective disagreeable often appears disguised as of a disagreeable cbaracter, nature, description,
116 LANGUAGE AND THE LAW

sort or kind; the plain adverb briefly is often expanded unnecessarily into in a brief way or
manner, and considerably into to a considerable degree or extent; often and seldom into on many
(few) occasions or in many (few) cases or instances; nearly into in the neighbourbood of. Other
abstract nouns like regard, respect, reference, connection are responsible for such longwinded
expressions as with regard to and in reference to for about, in regard to for in, having regard to
the fact that for as, and other compound preposition or conjunction phrases. Here is a
monstrosity containing two of these phrases:
* The special difficulty in Xs case arises in connection with the fact that he resides so far from
his place of work. (22 words.)
Compare the following version, which is concise, simple and direct :
* X is specially handicapped by living so far from his work. (11 words.)
Another common source of circumlocution is the use of meiosis, i.e., understatement used half-
apologetically in order to impress; e.g., not an inconsiderable amount of for much, not
infrequently for often, possessing an influence by no means to be despised for influential.

Gobbledy-Gook
Gobbledy-gook is the name given by Maury Maverick to a kind of jargon used by some
bureaucrats. It is also used by the lawyers in their writings and speech.
Jargon is a talk that is considered both ugly sounding and hard to understand. It is applied to:
1. The sectional vocabulary of a science, art, class, sect, trade, profession, full of technical terms.
2. Hybrid speech of different languages.
3. Loosely the use of long terms, circumlocution, and other clumsiness.
It is better if the term jargon is confined to the first sense. In that sense alone it has plenty of work.

Barbarisms
Barbarism means uncivilised condition, grossly uncultivated taste, an illiterate expression or a
word formed in an unorthodox way. Here the word is used in this last sense. This meaning was
given to it by the Greeks. It conveys no more pejorative an implication than that it is a sort of thing
one might expect from a foreigner. Even so, barbarism may seem a hard word to fling about, apt to
hurt feelings, though it may break no bones. It is better to avoid both barbarisms and the word
barbarism itself.
Cooper states that barbarisms indicate inexact concept of the meaning of common words, or a
complete unawareness of the conventions of English style. He draws our attention to the following
"atrocities":
1. Do not say "claim" when you mean "assert".
2. Do not say "anticipate" when you mean "expect".
3. Do not say "feel" when you mean "think".
4. Do not say "implement" when you mean "carry out" or "fulfil".
5. Do not say "integrate" when you mean "co-ordinate".
6. Do not say "prior" when you mean "before".
7. Do not say "verbal contract" when you mean "oral contract".
8. Do not say "alibi" when you mean "excuse".
9. Do not say "like" when you mean "as".
10. Do not say "infer" when you mean "imply" ("imply" is to make a suggestion; "infer" is to
receive it).
LEGAL LANGUAGE AND LEGAL WRITING 117

11. Do not say "comprise" when you mean "compose" ("comprise" means "encompass";
"compose" means "form").
12. Do not say "than" when you mean "from".
13. Do not say "due to" except with reference to a noun.
14. Do not say "if and when" unless both conjunctions are needed. They rarely are.
The lovers of any language hate the use of unconventional words. But, Fowler points out that in
this era of democracy, it can be hardly expected that the susceptibilities of so small a minority
should be preferred to the comfort of the millions. He, therefore, opines that it is easier for the
former to dissemble their dislike for barbarisms than for the latter to first find out what they are
and then avoid them.
There are, however, two serious difficulties:
1. We may lack the information that would enable us to decide whether any particular word is
or is not a barbarism. Though a competent philologist can guide us, unfortunately we cannot
find a philologist every time we come across a dubious word.
2. A barbarism is like a lie. It has got the start of us before we have found it out, and we cannot
catch it. It is in possession, and our offers of other versions come too late.
Fowler laments that that barbarisms should exist is a pity. To expend much energy on denouncing
those that do exist is a waste. To create them is a grave misdemeanour; and the greater the need of
the word, the greater its maker's guilt if he miscreates it.

SIMPLIFICATION OF STYLE
A. PLAIN ENGLISH
It is often stated that lay persons cannot understand the law and legal documents, because they are
in the "language of the law". Even the well educated mass cannot understand this language of the
law. Therefore, they cannot understand the effects of their own deeds. This results in unnecessary
litigations. Therefore, naturally, there is a demand for simplification - simplification of language
as well as simplification of substance. President Jimmy Carter officially made it clear that the laws
and other official drafting should be in plain English.
A reading of the law shows that it is not in plain English. It is not properly subdivided and
captioned.

WAYS TO PLAIN ENGLISH

Rudolf Flesch gives us the recipe for simplicity in the form of three rules:
1. Talk about people
2. in short sentences
3. with many root words.

He further tells an easy trick for achieving these three things with one simple rule: use of verbs.
He observes that nothing is a simple as a brief three-word sentence that follows the pattern:
somebody does something. It is the verb that gives life to any sentence; it literally makes the
sentence go.
Reed Dickerson advises draftsmen to arrange their sentences so as to make the fullest use of finite
verbs instead of their corresponding participles, infinitives, gerunds, and other noun and adjective
forms denoting action. Thus, one
118 LANGUAGE AND THE LAW

should not say should say should not say should say
give consideration to consider is dependent on depends on
give recognition to recognise is in attendance at attends
have knowledge of know make an appointment of appoint
have need of need make application apply
in the determination of in determining make payment pay
is applicable applies make provision for provide for

Dickerson also advises the avoidance of the following terms altogether as they are mere
gobbledygook:
above (as an adjective) thenceforth
above-mentioned thereunto
afore-granted therewith
aforementioned to wit
aforesaid under-mentioned
before-mentioned unto
henceforward whatsoever
herein whensoever
hereinafter wheresoever
hereinbefore whereof
hereunto whosoever
premises (in the sentence of matters already referred to) within-named
said (as a substitute for "the", "that", or "those") witnesseth
same (as a substitute for "it", "he", "him", etc.)

Dickerson further suggests the use of easier alternatives in place of some difficult words such as
accorded (given), adequate number of (enough), admit of (allow), at the time (when), cause it to be
done (have it done), etc.
Alan Siegel opines that writing with a personal tone can make for better communication. Using
active rather than passive voice, shorter sentences, contractions, and addressing the parties directly
instead of in the third person, are among the other suggestions given by Siegel. He also goes to the
extent of suggesting that we should use examples in legal drafting as in case of any other drafting,
to make the ideas clear. He also quotes an example from an insurance policy: "Your teenage
daughter borrows a car belonging to her friend's father with the understanding that she is to drive
to the airport. She is covered if she goes to the airport but not if she goes on a 400-mile trip."

PLAIN ENGLISH AND THE LAW

"Plain English" is in many legal contexts anything but plain. Besides, the concept suggests that
there is an ideal way to say things that will fit all legal audiences. Because legal audiences differ,
the draftsman should be able to adjust his focus accordingly. On the other hand, no great harm is
involved if such a law focuses solely on professionals.
Further, readability is not the same as substance clarity. A document can meet Flesch or Gunning
test 100 per cent without rising above pure gibberish. What we should try to achieve a general
performance standard of decently readable substantive clarity. Our "simplicity" should be such a
simplicity that does no material violence to the substantive values that inhere in the subject matter.
Moreover, as Dickerson points out, any approach to clarity that is tied only to language misses a
least two important aspects of the problem. Functional clarity depends not only on clarity of
LEGAL LANGUAGE AND LEGAL WRITING 119

language but also on clarity of concept and clarity of organisation. There may also be fourth:
clarity of context.
The price of clarity is that the clearer the document the more obvious its substantive deficiencies.
For the lazy or dull, this price may be too high.
Siegel observes that a careful layout and attractive design are as important as clear language. If the
document look terrifying, it does not matter how easy the words are. They will never be read.
Good design sets tone for the document. It communicates the document's intent as much as words
do. It also makes the document more useful, by guiding the reader's eye to the information he
wants to know. Details like type size and type face, length of line, fixed or ragged margins, even
the colour of the paper used for printing are all important tools for communication. Carl Felsenfeld
also expresses the same opinion, that the design of a document can be as important as its language.
Siegel's main emphasis, however, is on the point that language must follow logic, both
conceptually and chronologically.

SIMPLIFICATION OF SUBSTANCE

Simplifying language will be ultimately futile if the underlying thought remains confused. To
adequately simplify the substance, we must solve two problems:
1. The draftsman should determine whether any substantive complexities may be prudently
dropped. Although it is not the draftsman's responsibility to determine substantive policy, it may
be appropriate in some instances to ask the client whether all the contemplated contingencies are
worth reflecting.
The process of adding legal "protections" to an instrument is generally a fairly relaxed and
undisciplined exercise. Contracts generally grow from a "precedent", i.e., a contract that was
previously used in a similar transaction. Though many of the provisions in the previous contract
are not needed, they tend to remain. New phrases and paragraphs are added because they are
"desirable". The plain English movement requires a new drafting approach. Each paragraph, each
sentence should be analysed one at a time against the specific transaction and the type of
protection necessary. Many of the traditional paragraphs will be found unnecessary.

2. The draftsman should also determine whether, without changing substance, the conceptual
structure can be simplified. This involves searching for the lowest common denominator.
The problems of remainders over gets more complicated as the number of beneficiaries increases.
Remainders over can be simplified by thinking of remaindermen as a class. Otherwise, the
draftsman will have to set up separate provisions for each remainderman in identical or nearly
identical terms, thereby increasing the length of the document unnecessarily, and imposing an
unnecessary and irritating burden on the reader and the burden of at least mechanical checking on
the draftsman himself.

PLAIN ENGLISH: CLARITY AND READABILITY


Frank P. Grad dismisses "plain English" as a false issue. He opines that many problems that need
legislative resolution are complex and difficult. To pretend that they are susceptible of "plain
statement" is as misleading as to assert that such problems are susceptible to simple, easy solution.
We need complex language to state complex problems of law or fact. A simple statement of issue
does not itself simplify it. On the contrary, it may mislead the reader to believe that the problem is
simple. Form follows function. The language of drafts of legislation should address itself to the
120 LANGUAGE AND THE LAW

problem to be resolved. If the complex problems require complex language for their resolution, the
draftsman has to use complex language. No trained draftsman uses complex forms unnecessarily.
Despite the popular notion to the contrary, a good draftsman does try to write a statute so that it
can be understood by those to whom it is directed and those who have to administer it, and to
achieve this, he tries to use plain English. But still, many statutes are complicated and difficult to
comprehend. This is not the fault of the draftsman. Statutes are laws. They are intended to regulate
human relationships. If those relationships are complicated, the laws regulating them will also be
complicated. This is true of many scientific theories also. Atomic energy, theory of relativity,
astronomy, etc. are all complicated. Scientists cannot explain them so that every schoolboy will
understand. These theories can be explained in a popular way so that an intelligent reader can get a
general idea of the theory. But to those who have to apply the theory, the theory must be explained
exactly and technically. Same is with law. A short and simple description of statute can be easily
given so that any literate person can understand in a general way what it is all about, but that
description cannot be a substitute for law itself.
The requirements for plain English policies and forms are either very general, or in the case of the
readability formula requirements, specific but not very useful. Although readability formulas are at
best assessment tools, they are often used erroneously as guides for rewriting.
Then, what is plain English? A number of guidelines are currently being used for writing of
documents in plain English. From them, we might be able to piece together a description of plain
English.
1. On the sentence structure:
(a) Sentences should be simple and short: But discourse composed of simple, short
sentences is not only unnatural, it is incredibly boring. Further, eliminating the surface
complexity of discourse only drives the complexity underground. When we remove
relative clauses, we remove the logical connectors that give meaning and coherence to a
sentence.
(b) Avoid gerunds, participles, and infinitives: This will make the sentences difficult to
construct and unnatural.
(c) Exhortations to avoid passive voice: This is comparatively more rational. But linguistic
theory and psycholinguistic research tend to show that full passives are no more difficult
than active form where the focus of the sentence requires them. In fact, where the focus
requires a passive, the active form will be more difficult to process.
(d) Elimination of unnecessary words from sentences: This suggests removal of
unnecessary words, particularly the "relative pronoun-plus-copula" in sentences such as
"the woman [who was] meditating on the future of human race answered the telephone",
or "the places [which are] described in this brochure. Linguists call this "whiz" (wh__ is)
deletion, and linguistic theory, supported by some psycholinguistic data indicates that
such deletions tend to increase sentence processing difficulties.
2. On the level of vocabulary:
(a) Avoid "jargon" and "gobbledygook": However, these terms are not always defined. The
general meaning is that one should use short, common and easily understood words. But
not all short words are common and easily understood, and not all common and easily
understood words are short. Further, what is easily understood by lawyers is not easily
understood by engineers or doctors, and vice versa.
(b) Personalisation: Instead of "borrower agrees to repay the loan to the creditor", write "I
agree to repay the loan to you", or "You agree to repay the loan to me". The problem
LEGAL LANGUAGE AND LEGAL WRITING 121

inherent in personalisation is apparent from this example. How does the writer choose
who is to be "I" and who is to be "you"? As this decision is arbitrary, the reader may find
it difficult to remember who is who. The result may be "plain English", but it may also
confuse more than it elucidates, if it is not done carefully.
The use of readability formulas has created another set of misconceptions about the nature of
"plain English". many readability formulas such as "Flesch Test" and the "Gunning Fog Index" are
based on word and sentence length. The shorter the sentences and words, the higher will be the
readability score. But if we observe our everyday usage of English, it does not consist of short
sentences with short words. Therefore, and also as research shows, the results of readability
formulas are not reliable measures of the comprehensibility of written discourse.
Sentence length is itself a symptom of complexity, it is not the cause of it. The complexity and
difficulty of a sentence depend upon its syntactic and semantic structures. It is very easy to write
short sentences with short words that are totally incomprehensible. It is also possible to write long
sentences with long words that are very comprehensible. In short, writing to "fit the formula" may
seem to produce plain English, but the result is more likely to be disorganised baby talk.

B. ARCHITECTURE
Drafting of a document is often compared to construction of a building. It requires a lot of
planning. James Mackay observed that in the art of legal drafting the whole is antecedent to the
parts. This is an important rule in case of all writings, but more so in case of legal composition.
The draftsman should have a clear idea of what he is expected to write before he starts writing.
Then he should divide the matter into smaller units and sub-divide these units into smaller sub-
units, and so on. A skilled draftsman can do it mentally, but others will have to lay out a scheme of
whole composition on paper before he starts drafting.
Such plans suggest omissions which require to be provided for, and if provided for in time prevent
further difficulties of construction of the document. The draftsman should then draft each part
separately. While drafting each part he should concentrate on that part alone. But at the same time
he should not lose sight of the whole document and the relation of the part under consideration
with the whole document.
Normally the legal documents are divided into parts, chapters, sections, sub-sections, clauses, sub-
clauses, etc. depending upon the length of the document. The nomenclature may also differ from
document to document according to the requirement. But the cases are rare where division is not
necessary in legal drafting. Even the smallest of the documents is divided into paragraphs.
Division is important from at least three points of view:
1. Without division reference to particular points will become very difficult.
2. Division gives the person who has to study or explain the document the relief of natural pause
such as the reader of a book gets when he completes a chapter.
3. Probably, the most important use of division is to the writer himself. Each division being in its
turn a whole part of the composition, the attention of the writer may be specially directed to its
management.
The simplest and the best mode of expressing divisions is by numbers, and the distinction of
Roman and Arabic enables them to be used for the principal and also for subordinate divisions.
When still further division is required, the letters of alphabet become of use. This also depends
upon the nature of the composition.
122 LANGUAGE AND THE LAW

The document as a whole is designed to achieve some idea. Often, this idea is quite broad and
conists of several concepts. The document may be divided according to its components and
functions.
Thus Contract Act can be divided as under:

INDIAN CONTRACT ACT, 1872

CONTRACTS QUASI CONTRACTS

This may be further sub-divided as under, and thus appear further boxes:

INDIAN CONTRACT ACT, 1872

CONTRACTS QUASI CONTRACTS

Formation Classification Discharge Remedies

As can be seen, every time we make a further division, there appear more and more boxes based
on these divisions, until we have a huge pyramid of boxes. Finally one may see that when we were
splitting the Contract Act up into finer and finer pieces, we were also building a structure.
This structure of concepts is formally called a hierarchy and since ancient times it has been a basic
structure for all knowledge. Thus, our country is divided into states, states into districts, districts
into taluks, taluks into villages and towns, and so on. In biology also we find this type of division.
We divide the living beings into plant kingdom and animal kingdom. Each kingdom is divided
into phylum, order, class, genus and species. The whole thing is a system.
PRINCIPLES OF ARRANGEMENT
The principles of arrangement are too complicated to be adequately presented here. In general, the
objective of arrangement is to develop the most useful hierarchy of the concepts that inhere in the
problems to which the legal document is addressed. In meeting this objective, the draftsman has to
deal with three kinds of problems:
1. Problems of division,
2. Problems of classification, and
3. Problems of sequence.

Problems of Division: Problems of division are those involved in determining the bases on which
the divisions are made. The draftsman should choose the most fundamental basis of arrangement
for his primary breakdowns, the next most fundamental bass of arrangement in descending order
of importance.
LEGAL LANGUAGE AND LEGAL WRITING 123

The problem of division with respect to each set of elements is, to use an illustration, like that of
selecting the most appropriate implement for cutting a cake. The cutting implement may,
depending upon the nature of object, be chronology, age, importance, sex, weight, or rank.
Whichever is selected for the job, it must be used until the entire cake has been cut.
Logical division is the name of the process by which we distinguish the species of which the genus
is composed. The basis or the principle of division is called the fundamentum divisionis. James
Mackay lays down the following three rules to which a sound and useful division must conform.
1. The constituent species must exclude each other.
2. The sum of the constituent species must be equal to the genus.
3. The division must be founded upon one basis or principle.
Mackay gives the example of a wag who divided the genus human beings into men, women and
French. This violates the above three rules.
1. The constituent species (men, women and French) do not exclude each other. French includes
men and women.
2. The sum of the constituent species does not equal the genus (human beings). It omits children.
3. The division is not founded upon one basis, It is based on sex and nationality.

Problems of Classification: Once the draftsman has selected the proper implement for cutting the
cake, his next problem is to determine the places at which he has to cut the cake. Thus, once a
basis of division has been tentatively selected, its application to the materials at hand leads
inevitably to the problem of classification.
All classification may be said to be artificial, in the sense that we select the traits upon the basis of
which the classification is performed. That is the reason for the controversies as to what is the
proper classification of various sciences. Various sciences may be classified in different ways
according to the objectives of such classification.
Various classifications may differ greatly in their logical or scientific utility. The various traits
selected as a basis of classification differ widely in their fruitfulness as principles of organising
our knowledge. Thus the old classification of animals into those that live on land, those that live in
air (birds) and those that live in water (fish) gives us very little basis for systemising all that we
know and can find out about these creatures. The habits and structure of whale are more close to
those with hippopotamus or horse than with the fishes. Whales have mammary glands and suckle
their young, while fishes lay eggs. This makes a difference which is fundamental for the
understanding of the whole life cycle. Thus, some traits have a higher logical value than others in
enabling us to attain systematic knowledge or science.
Therefore, it is said that the business of science is first to gather the facts and then to classify them.
But we do not have a clear or adequate account of the situation. Some classification is involved in
determining what facts we should gather. But the most important thing is to pick out the trait in the
objects studied which will be the most significant clue to their nature.
One important rule of classification is that the draftsman must not dismember a functionally
indivisible subject merely because it falls partly within one heading and partly within another.
Dickerson gives an example of classification of dogs in which one dog is a white dog with brown
ears. If a person is sorting dogs by colours and putting them in separate pens, he would not cut off
the brown ears of a white dog and put the dog in pen for white dogs and throw the ears in the pen
for brown dogs. He would either put the dog in the pen for white dogs because it is a
predominantly white dog. Or else, he will create a separate pen for the dogs of mixed colours.

Problems of Sequence: Once a particular cake has been cut, the third step is to arrange the
resulting pieces or elements in the most appropriate logical sequence. In mathematical terms, this
124 LANGUAGE AND THE LAW

makes the set of elements an "ordered set". There will be as many such sequences as there are
bases for division used in the instrument. Except for the sequence of elements in the principal
division used in the instrument, each sequence will represent the division of an element that
appears in a higher sequence.
Dickerson gives a few useful rules of thumb for division of a legal document:
1. General provisions normally come before special provisions.
2. More important provisions normally come before less important provisions.
3. More frequently used provisions normally come before less frequently used provisions.
4. Permanent provisions normally come before temporary provisions.
5. Technical "housekeeping" provisions such as effective date provisions, normally come at the
end.
In practice, however, these principles sometimes cause conflicting results. In such a case the
draftsman should use his judgment to decide which principle is more important under the given
circumstances.

OVERREFINEMENT
Though division of the matter is necessary for proper presentation of the matter, James Mackay
warns against too many and minute subdivisions of the legal composition. Such subdivision,
instead of assisting, perplexes memory, creates difficulties instead of removing them in the matter
of reference, and does not in the least help to the understanding of the composition as a whole. The
divisions of a legal composition should reduce it into visible and tangible parts, and not to atoms.

RECURRING MATTERS
Some of the difficult problems of arrangement arise due to recurring situations. If a term recurs
throughout the instrument, it can be handled once and for all in a single provision. Such a
statement should be located at the beginning or at the end of the part involved. Readers normally
look for such provisions at the beginning or at the end of the part, because it is customary to put it
there.
However, this is possible if the situation recurs in one part. If it recurs in many parts, difficulties
arise. If we place them at the beginning or end of each part in which they appear, the readers can
easily find it, but that requires repetition. This means longer instrument and the chances of
unintended differences. If they are given in a single, unified solution, it is hard to place the
provision where it can be readily found. Thus there is a risk that some of its important applications
may be overlooked, because it may fail to serve as a usable answer to the problem in all the places
where it arises.
Some times the draftsman can use internal cross references to avoid this difficulty. For example,
he may use the phrases such as, subject to the provisions of sec. 4, ). But in Reed Dickersons
opinion, it should be kept to the minimum as it costs heavily in readability and clarity.
Even more difficulty is caused by the recurrence of problems in more than one document. The
desire for contiguity suggests that the statement should be repeated in every place. The price of
this will be the multiplicity of statements. Even greater difficulty will be faced while amending the
statement whenever necessary. Any mistake in amendment will cause nonuniformity in treatment.
The burden of this price should be taken or not depends upon three considerations:
1. the length and complexity of the statement
2. its importance, and
3. the amount of repetition involved.
LEGAL LANGUAGE AND LEGAL WRITING 125

While economy, ease of amendment, and the resulting uniformity are the positive aspects,
incompleteness, lack of findability, and consequent misunderstanding are the negative aspects.
The draftsman, therefore, has the following choices or the combination of these choices.
1. Repeating the provision
2. Placing it where it has more important application
3. Framing it as an independent document

C. MICRO-ARCHITECTURE
Whereas architecture means arrangement of the matter in the document, micro-architecture means
the arrangement of words in a sentence. In this sense, it means syntax. According to Layman Allen
there are two dimensions that affect the meaning of expressed in a sentence.
1. the semantic dimension, and
2. the syntactic dimension.
Allan feels that more attention is given to the semantic dimension than to syntactic dimension.
Legal education is no exception.

SIMPLE MODIFICATION
Because English words have few inflections, it is important to put them in right order. We have
already noted that the meaning of a sentence depends on the order in which words are arranged.
Same words may be arranged in different orders to mean different things. Thus "Cat chased dog"
and "Dog chased cat" use the same words in different orders and therefore give different
meanings. Thus, wrong arrangement of words can either cause wrong meaning or ambiguity.
Ambiguity may be caused by several mistakes of syntax. We can quote five such instances here.
There may be more.
1. Squinting modifiers
2. Juxtaposed modifier and modified
2. Pronominal reference
3. Use of successive prepositions
4. Terminal use of 'because'

Squinting Modifiers
Modifiers are especially tricky. We have already discussed the ambiguity caused by squinting
modifiers. Thus "No person may molest an animal on highway" is an ambiguous sentence. Usually
this ambiguity can be cured by placing the modifiers as close as possible to the words they
modify. But this is not always possible without repetition in at least the following two cases:
1. When a modifier relates to multiple terms.
For example, 'charitable institutions and organisations' is ambiguous because it is hard to tell
whether the modifier 'charitable' is applicable only to 'institutions' only or to both 'institutions'
as well as 'organisations'. 'charitable institutions and charitable organisations' would be
unambiguous.
2. When multiple modifiers are applicable to a term.
For example, 'typing and copying charges' is ambiguous because whether only 'copying'
modifies 'charges' or both 'typing' as well as 'copying' modify 'charges is hard to tell. 'typing
expenses and copying expenses' would be unambiguous.
126 LANGUAGE AND THE LAW

Juxtaposed Modifier and Modified


One of the most troublesome problems of ambiguity is that of determining the scope of a modifier
and the scope of a thing modified. When the two are juxtaposed, it is often hard to tell whether a
particular word is a part of the modifier or part of the thing modified. To take a simple example,
whether 'mini car plant' means 'a plant manufacturing mini cars' or 'a mini plant manufacturing
cars' is difficult to tell.

Pronominal Reference
Careless use of pronouns causes similar trouble of interpretation. For example, 'Plaintiff and
defendant went to his house' may be an ambiguous sentence unless
1. context clarifies the meaning, or
2. either of them is a woman.
If both are men, then whether plaintiff and defendant went to plaintiff's house or defendant's house
is difficult to say. Even it is possible that they might have gone to the house of a third person.
Such ambiguity can be avoided by avoiding pronominal reference. Thus, 'Plaintiff and defendant
went to the Defendant's house' is an unambiguous sentence.
Thus, when context leaves a significant uncertainty, the pronoun should be replaced by the name
of the person or thing to which it refers, or the context should be appropriately changed.
This rule is also applicable to the abridged references. A simple reference to 'the Corporation' may
be adequate in a document in which there is only one corporation involved. If there are several
corporations involved, it is safer and better to use refer to the particular corporation by name
unless the context makes it clear which one is meant.
Successive Prepositions
Ambiguity may also arise when there are two successive prepositional phrases. Thus "Driver of a
bus on the road" is ambiguous because it is difficult to tell whether it is the bus is on the road or
the driver is on the road. This ambiguity can be easily avoided by rewriting the sentence either as
"Driver of a bus who is on the road" or as "Driver of a bus which is on the road", depending upon
the necessity of meaning. 'Who' can be applicable only to the 'driver' and 'which' is applicable only
to the 'bus'.
Another example is "Every shareholder of a company in India". Does the phrase 'in India' relate to
'shareholder' or 'company'? The ambiguity can be resolved by rewriting the phrase either as "Every
shareholder of a company who is in India" or as "Every shareholder of a company incorporated in
India".

Terminal Use of 'Because'


A terminal 'because' clause is often ambiguous in that it is not clear whether the clause applies to
the entire statement or merely to the phrase immediately preceding. For example, in the sentence,
"The union may not rescind the contract because of hardship", it may not be clear whether the
draftsman intended to say, "The union may not rescind the contract, because doing so will cause
him hardship" or "The union may not rescind the contract using hardship as the justification". The
ambiguity lies in the doubt whether the word 'not' negates the broad power to "rescind the
contract" or the narrower power to "rescind the contract because of hardship". if the draftsman
intends the former, he should at least use a comma after 'contract'. Even better would be to place
'because' at the beginning of the sentence. If he intends the latter, he might say, "The union may
not rescind the contract on the ground of hardship".
LEGAL LANGUAGE AND LEGAL WRITING 127

AVOIDING AMBIGUITY
Ambiguity may be avoided by using proper context or proper syntax. In some cases we observed
that by using the names instead of pronouns, we could avoid ambiguity. In some cases by
repeating modifiers we could avoid ambiguity.
It is unfortunate that English has so few symbols for showing that specific phrases form a unit.
The hyphen has only a limited utility for this purpose. Mathematics has solved the problem largely
thorough the use of parentheses and contiguity. To avoid the ambiguity in the expression "x plus y
times z", a mathematician would either write "(x + y) z" or "x + yz", depending upon the
substantive result intended.
Though writing convention permits only a sparing use of parentheses, they are sometimes usable
for this purpose.
For example, the phrase "active duty other than for training before July" is ambiguous because
'before July' may be applicable either to 'active duty' or to 'training'. But in the phrase "active duty
(other than for training) before July" there is no such ambiguity, because 'before July' can be
applicable only to 'active duty' and not to 'training'.
Sometimes, a pair of commas also perform a similar function. They are useful in setting off a
group of words as a verbal unit. But, unfortunately, they are weaker devices than parentheses
because, unlike parentheses, commas are non-directional. When used in the vicinity of other
commas, it is often uncertain how they are to be paired.

MULTIPLE MODIFICATION

Difficult Choice Between "And" and "Or"


In a field like legal drafting where high degree of precision is required, to know when to use and
and when to use or is one of the most difficult problems. Fortunately for the courts and the other
readers of the legal documents, a correct choice between and and or does not always control
the result. This is because the basic principle that language is to read in its broadest appropriate
context has revealed intended meanings unsupported or denied by a grammatical word-by-word
construction of the text.
Then why should we bother ourselves with such a question as to when to use and and when to
use or? Reed Dickerson gives three reasons for this.
1. The reason is that context, however valuable, does not resolve all doubts and correct all
imprecision.
2. A system of communication should be internally consistent. Grammar should support, rather
than subvert, the intended meaning.
3. General clarity is usually the cumulative results of attending to many individually
insignificant matters.
The difference between and and or is usually explained by saying that and stands for
conjunctive, connective or additive and or stands for disjunctive or alternative. And
connotes togetherness while or connotes choice or option. Beyond this point difficulties
arise. Mainly there are two difficulties.
1. One difficulty is that each of these words is on some occasions ambiguous. It is not clear
whether the draftsman intends the inclusive or (A or B or both) or exclusive or (A or B, but not
both).
128 LANGUAGE AND THE LAW

While the above difficulty is notorious, what is less known is the fact that there is a corresponding
ambiguity in the use of and. This ambiguity arises out of the difficulty to know whether the
draftsman intended several and (A and B, jointly or severally) or joint and (A and B jointly but
not severally). This uncertainty also surprises some, because and is normally used as several
and. Even so, the draftsmen sometimes intend things to be done jointly or not at all. Thus when
one purchases a pair of shoes he purchases left shoe and right shoe jointly but not severally. There
will be no uncertainty here. But when one speaks of husbands and wives there may be
uncertainty as to the right, privilege or duty extends to only husbands without wife, and vice versa,
or whether they should be enjoyed or discharged by husband and wife together. Where such doubt
can arise, it is desirable to recognise it and deal with it.
Observation of legal usage suggests that in majority of cases or is used in the inclusive rather
than exclusive sense, and and is used in several rather than joint sense. This is valuable
information for legal writers and readers, because it means that in the absence of special
circumstances they can rely on simple ors and ands to carry these respective meanings.
Special circumstances in which it is unsafe to rely upon this general usage exist wherever the
courts have shown unfriendly attitude in interpreting language. Thus where the courts will apply
strict interpretation to a statute such as a criminal statute, it is unsafe to rely on the chance that or
will be given its normal inclusive meaning. It is safer to say expressly, shall be fined not more
than Rs. 5000, or imprisoned for not more than 3 years, or both.
2. Another and more perplexing difficulty arises due to a possible conflict between grammatical
meaning and contextual meaning. In such cases it is uncertain as to whether the draftsman has
attempted an enumeration of persons or institutions, or whether he has attempted the enumeration
of their characteristics or traits. Take for example, the phrase every husband and father. If this is
used for enumeration of two classes of persons, the better way of saying that would be every
father and every husband. If on the other hand, it is intended as enumeration of characteristics or
traits necessary to identify each member to be covered, the better way of saying that would be
every person who is both a husband and a father.
Where and is used to enumerate persons or institutions, there are two ways of expressing it.
(a) By enumeration of persons, using and, and
(b) By enumeration of their identifying characteristics or traits, using or.
This is not to say the and means or. It is to say that whether you use and or or in such a case
depends upon whether you identify these persons by enumerating several classes into which they
fell or by defining them as a single class by enumerating their identifying characteristics.
A corollary to the above statement is that shifting from and to or without shifting from a
persons approach to a characteristics approach affects the grammatical meaning.
Reed Dickerson gives the following example to clarify the above discussion.

Provision A Provision A
The security roll shall include: The security roll shall include each person who:
1. each person who is 70 years of age or 1. is 70 years of age or older;
older;
2. each person who is permanently, 2. is permanently, physically disabled; or
physically disabled; and
3. each person who has been declared 3. has been declared mentally
mentally incompetent. incompetent.
LEGAL LANGUAGE AND LEGAL WRITING 129

Although both the provisions say exactly the same thing, and is necessary to Provision A
because it enumerates three separate classes of persons each of which must be included, whereas
or is necessary to Provision B because it names a single class of persons by enumerating three
alternative qualifications for membership.

Use of "And" and "Or" with Modifiers


There are four main variations of phrases using "and" and "or". They can be depicted by the
following examples.
1. charitable and educational institutions.
2. charitable or educational institutions.
3. charitable institutions and educational institutions.
4. charitable institutions or educational institutions.
"Charitable and educational institutions" may mean either of the following:
(a) Institutions which are both charitable and educational.
(b) Charitable institutions and educational institutions.
Normally adjectives are used cumulatively rather than distributively. Therefore, normally the first
meaning is more appropriate. This is true of mandatory as well as permissive sentences. However,
sometimes the second meaning may be the meaning intended by the draftsman. If that is the case,
the draftsman shall use the word 'institutions' twice to make the meaning clear as it is done above
in (b).
For example in "copying and typing expenses" the modifiers are mutually exclusive. The same
expense cannot be both 'typing' and 'copying'. Therefore only the second meaning is applicable.
Though the phrase "typing and copying expenses" is shorter and has the sanction of usage, it
would be grammatically preferable to say "typing expenses and copying expenses".
"Charitable or educational institutions" may mean any of the following:
(a) Institutions that are either charitable or educational, but not both.
(b) Institutions that are charitable or educational or both.
(c) Charitable institutions or educational institutions, but not both.
(d) Charitable institutions or educational institutions or both.
It is believed that the second meaning is the normal meaning. This is true of mandatory as well as
permissive sentences. If other meanings are intended then it is better to use the words in (a), (c) or
(d) to make the meaning clear.
It may also be noticed that though phrases (b) and (d) are differently worded, they are, in most of
the cases, substantively the same. It is normally inferred that if you may or must have institutions
that are either charitable or educational or both, you may also have both charitable institutions or
educational institutions. Conversely, if you may or must have both charitable institutions and
educational institutions, you may also have institutions that are both charitable and educational.
If we consider the phrase "typing or copying charges", the modifiers are mutually exclusive.
Therefore second meaning is not possible. The third meaning may also be excluded if we infer the
normal inclusive 'or'. Normally the first meaning is the proper one. Again it may be noticed that in
most cases the fourth meaning is the same as this meaning. If you may or must pay expenses that
are either typing expenses or copying expenses, it is normally inferred that you may pay both type
of expenses.
"Charitable institutions and educational institutions" may mean either of the following:
130 LANGUAGE AND THE LAW

(a) Both charitable and institutions and educational institutions, which may include institutions
which are both charitable and educational.
(b) Charitable institutions or educational institutions or both, which may include institutions
which are both charitable and educational.
In case of mandatory sentences one must have both kinds of institutions. Here 'and' is joint rather
than several. The first meaning is, therefore, the normal grammatical reading.
If the sentence is permissive, however, one may have either type of institutions. Here, 'and' is
several rather than joint. The second meaning is, therefore, the normal grammatical reading.
Thus, in 'typing expenses and copying expenses' the modifiers are mutually exclusive. Here the
possible meanings are the same as those given in (a) and (b), but the possibility of including an
expense which is both typing as well as copying expense is excluded from both the meanings (a)
and (b).
"Charitable institutions or educational institutions" may mean either of the following:
(a) Charitable institutions or educational institutions, but not both, which may not include
institutions which are both charitable and educational.
(b) Charitable institutions or educational institutions or both, which may include institutions
which are both charitable and educational.
If we infer the normal inclusive 'or', second meaning is the normal grammatical meaning. This is
true in case of both mandatory as well as permissive sentences.
In 'typing expenses or copying expenses' the modifiers are mutually exclusive. Here the possible
meanings are the same as those given in (a) and (b), but the possibility of including an expense
which is both typing as well as copying expense is excluded from the meaning (b).
Thus, in case of cumulative modifiers 'charitable' and 'educational', if the sentence is a permissive
sentence, the following meanings are the proper grammatical readings of the above phrases:
1. charitable and educational institutions.
(a) Institutions which are both charitable and educational.
2. charitable or educational institutions.
(b) Institutions that are charitable or educational or both.
(d) Charitable institutions or educational institutions or both.
3. charitable institutions and educational institutions.
(b) Charitable institutions or educational institutions or both, which may include institutions
which are both charitable and educational.
4. charitable institutions or educational institutions.
(b) Charitable institutions or educational institutions or both, which may include institutions
which are both charitable and educational.
Thus if it is intended that the person covered by the statute is to be free to have either, neither or
both, the draftsman may use any one of the following three sentences to express the idea:
1. He may contribute to charitable or educational institutions.
2. He may contribute to charitable institutions and educational institutions.
(Here 'and' is several, not joint.)
3. He may contribute to charitable institutions or educational institutions.
(Here 'or' is inclusive, not exclusive.)
LEGAL LANGUAGE AND LEGAL WRITING 131
132 LANGUAGE AND THE LAW
LEGAL LANGUAGE AND LEGAL WRITING 133
134 LANGUAGE AND THE LAW
LEGAL LANGUAGE AND LEGAL WRITING 135
136 LANGUAGE AND THE LAW
PART THREE
USE OF LANGUAGE
COMMON ERRORS
THINGS ONE SHOULD LEARN IN LEGAL WRITING
Ronald Goldfarb lists eighteen things one should learn in legal writing. While he mentions each
point, he illustrates the point in the same sentence.
1. Dont use no double negatives.
2. Make each pronoun agree with their antecedent.
3. Join clauses good, like a conjunction should.
4. When dangling, watch your participles.
5. Verbs has to agree with their subjects.
6. Dont use commas, which arent necessary.
7. Try not to ever split your infinitives.
8. Its important to use your apostrophes correctly.
9. Dont write run-on sentences they are hard to read.
10. It behoves the writer to avoid archaic expressions.
11. Dont use hyperbole; not one writer in a million can use it effectively.
12. Avoid clichs like the plague.
13. Mixed metaphors are a pain in the neck and should be thrown out the window.
14. A truly good writer is always especially careful to practically eliminate too-frequent use of
adverbs.
15. Placing a comma between subject and predicate, is not correct.
16. Parenthetical words however should be enclosed in commas.
17. Correct spelling is esential.
18. Always proofread your copy to see if you any words out.

HOW TO WRITE GOOD


Rules similar to the ones given by Goldfarb are available on internet.
1. It is wrong to ever split an infinitive.
2. Contractions arent necessary.
3. The passive voice is to be avoided.
4. Prepositions are not the words to end sentences with.
5. Be more or less specific.
6. Dont use commas, which arent necessary.
7. One word sentences? Eliminate..
8. Who needs rhetorical questions?
9. Exaggeration is a billion times worse than understatement.

139
140 LANGUAGE AND THE LAW

Exercises in avoidance of common errors:


1. A huge pile of books were lying there. (was)
2. There were five boys; they were hustling each other. (one another)
3. Either of the.three books will do. (any one)
4. Neither of the two accused persons were found guilty. (was)
5. It is better than all. (better than many-best of all)
6. He said that he will succeed this time. (would)
7. He is one of those people who is always getting into trouble. (are)
8. Let Dhawan and I do the work for you. (me)
9. This law comprises of 42 sections. (no of, consists of is correct)
10. A killed B due to old enmity. (on account of)

11 RULES OF WRITING
1. To join two independent clauses, use a comma followed by a conjunction, a semicolon
alone, or a semicolon followed by a sentence modifier.
The delivery boy knew he carried strange cargo, but still ventured off unafraid.
The delivery boy knew he carried strange cargo, but he still ventured off unafraid.
My math teacher doesn't know how to lecture, she should have remained a student.
My math teacher doesn't know how to lecture; she should have remained a student.
Gregor has not changed physically; but has given himself an excuse to separate himself
from the pain of previous experiences.
Gregor has not changed physically; however, he has given himself an excuse to hide
from the pain of previous experiences.

2. Use commas to bracket nonrestrictive phrases, which are not essential to the sentence's
meaning.
The bus driver with her ears tuned to the roar decided to take the grumbling bus on a
detour across the football field.
The bus driver, her ears tuned to the roar, decided to take the grumbling bus on a
detour across the football field.
My window as dirty as it is reveals the beauty of nature on a snowy morning.
My window, as dirty as it is, reveals the beauty of nature on a snowy morning.
King and Lucille, his customized black Gibson have electrified audiences all over the
world.
King and Lucille, his customized black Gibson, have electrified audiences all over the
world.
LEGAL LANGUAGE AND LEGAL WRITING 141

3. Do not use commas to bracket phrases that are essential to a sentence's meaning.
The man, who has too many ties, has too few necks.
The man who has too many ties has too few necks.
The cats, with six toes, are a unique attraction of the tour of Hemingway's house.
The cats with six toes are a unique attraction of the tour of Hemingway's house.

4. When beginning a sentence with an introductory phrase or an introductory (dependent)


clause, include a comma.
After buying the five pound jar of marshmallow spread he set off in search of a bulk
portion of peanut butter.
After buying the five pound jar of marshmallow spread, he set off in search of a bulk
portion of peanut butter.
With this he bestows the responsibility of his own happiness on his mother and father.
With this, he bestows the responsibility of his own happiness on his mother and father.
As she begins to gain independence it is natural for Grete to regard the idea of
dependency as repugnant.
As she begins to gain independence, it is natural for Grete to regard the idea of
dependency as repugnant.

5. To indicate possession, end a singular noun with an apostrophe followed by an "s".


Otherwise, the noun's form seems plural.
Though the lobsters claws were bound, the creature made a threatening gesture as they
dropped it in the pot.
Though the lobster's claws were bound, the creature made a threatening gesture as they
dropped it in the pot.
In a democracy, anyones vote counts as much as mine.
In a democracy, anyone's vote counts as much as mine.
There is a vast age difference between Victors mother and father.
There is a vast age difference between Victor's mother and father.

6. Use proper punctuation to integrate a quotation into a sentence. If the introductory material is
an independent clause, add the quotation after a colon. If the introductory material ends in
"thinks," "saying," or some other verb indicating expression, use a comma.
Tumbling down the hill, Jack yelled: "Gosh, I'm sick of this."
Tumbling down the hill, Jack yelled, "Gosh, I'm sick of this."
Her letter spoke to him in harsh tones, "You never fail to repulse me."
Her letter spoke to him in harsh tones: "You never fail to repulse me."
He views the problem as a slight delay or a sickness that will eventually disappear, "I
will go back to sleep for a few minutes and forget all this nonsense."
He views the problem as a slight delay or a sickness that will eventually disappear: "I
will go back to sleep for a few minutes and forget all this nonsense."
142 LANGUAGE AND THE LAW

7. Make the subject and verb agree with each other, not with a word that comes between them.
The Thanksgiving dinner, right down to the beautiful centerpiece, were devoured by
the escaped grizzly.
The Thanksgiving dinner, right down to the beautiful centerpiece, was devoured by the
escaped grizzly.
The cart, as well as its contents, were gone.
The cart, as well as its contents, was gone.
The girl, along with her classmates, like the new teacher.
The girl, along with her classmates, likes the new teacher.
8. Be sure that a pronoun, a participial phrase, or an appositive refers clearly to the proper
subject.
Its hump decorated in strings of flowers, the programmer rode the camel through the
food court.
The programmer rode the camel, its hump decorated in strings of flowers, through the
food court.
Filled with bad gas, he drove his car to Tucson despite the knocking.
Although it was filled with bad gas, he drove his car to Tucson despite the knocking.
9. Use parallel construction to make a strong point and create a smooth flow.
I was glad to be departing for Australia but I was nervous when I left my apartment.
I was glad to be departing for Australia but nervous to be leaving my apartment.
The system excels at tasks such as communicating with other computers, processing
records, and mathematical calculations.
The system excels at tasks such as communicating with other computers, processing
records, and calculating mathematical equations.
10. Use the active voice unless you specifically need to use the passive.
A refund was given to him by the hair regeneration company.
The hair regeneration company gave him a refund.
A good score was achieved by the team.
The team achieved a good score.
A box of chocolates and a dozen roses were presented to the girl by her boyfriend.
The boyfriend presented a box of chocolates and a dozen roses to the girl.
11. Omit unnecessary words.
I would like to assert that the author should be considered to be a buffoon.
The author is a buffoon.
It would be safe to say that Gregor Samsa is not the only character in Franz Kafka's
The Metamorphosis to undergo drastic changes.
Gregor Samsa is not the only character in Franz Kafka's The Metamorphosis to
undergo drastic change.
Before going to the supermarket, we made a list of the groceries we needed in order to
make the food that we intended to eat for dinner.
Before going to the supermarket, we made a list of groceries that we needed to prepare
dinner.
LEGAL LANGUAGE AND LEGAL WRITING 143

HOMONYMS
altar, alter currant, current mail, male road, rode
ascent, assent fair, fare manner, manor role, roll
bail, bale flour, floor mantel, mantle rough, ruff
bare, bear fore, four meat, meet sail, sale
beach, beech foul, fowl medal, meddle scence, seen
bell, belle gait, gate miner, minor seam, seem
berth, birth grate, great moan, mown sea, see
beer, bear groan, grown pail, pale site, cite, sight
blew, blue hair, hare pain, pane soar, sore
board, bored hall, haul pear, peer sole, soul
bough, bow hale, hail peace, piece some, sum
brake, break heal, heel peal, peel stair, stare
canvas, canvass hear, here plain, plane stationary, stationery
ceiling, sealing heard, herd pore, pour steal, steel
cell, sell heir, air pray, prey straight, strait
cellar, seller hole, whole principal, principle tail, tale
cent, sent, scent idol, idle profit, prophet their, there
creal, serial kernel, colonel rain, rein, reign throne, thrown
chord, cord lain, lane raise, raze threw, through
clause, claws lead, led rest, wrest vain, vein
coarse, course lessen, lesson rhyme, rime waist, waste
council, counsel loan, lone right, write, rite wait, weight
creak, creek made, maid ring, wring ware, wear
144 LANGUAGE AND THE LAW

MODERN ENGLISH USAGE


ADMIT, ADMIT OF, ADMIT TO
Admit takes a personal subject e.g. He admitted killing her, but admit of (allow of, leave room
for) does not, e.g. These regulations admit of no variation. Admit to: confess e.g. She refused to
admit to the allegation. Also admitted to bail.

ADULTERY, ADULTRATION
Adultery: violation of the marriage-bed; adultration: mixing something inferior or spurious.

ADVANCE (n), ADVANCEMENT


Advance: progress, going forward; advancement: promotion or helping forward.

AGENDA
It is thus used for both the numbers (singular and plural).

AGREE (WITH, TO, ON)


Agree with a suggestion, a course of action means to regard it with approval; agree to it: to give
consent to it. Thus, we may agree to something without agreeing with it. Agree on: to reach an
agreement on someth ing.

ALIBI
Alibi is the defence plea that the accused was elsewhere at the time of occurence. Hence its use in
the sense of an excuse, a justification, or extenuating circumstance is not legitimate.

ALLOW, ALLOW OF
Allow means permit. It takes a personal subject; allow of: give scope for, leave room for (see admit
of above).

ALMOST, NEARLY
Almost and nearly are quite often, used interchangeably.
(i) Almost is, however, a genuine adverb of degree, nearly is not.
(ii) When we wish to express that we came near to doing a thing but then it was avoided,
nearly is preferred e.g. I nearly ran over that beggar squatting on the road.
(iii) Verbs and adjectives denoting feeling or state of mind take almost, not nearly, e.g. She
almost fainted.

ALREADY, ALL READY


All ready means prepared, use them separately; Already (adv.) means by the time in question.

ALRIGHT
It is a very common misspelling, All right is the only correct form.
ALSO
Also is an adverb, not a conjunction. Hence, it should not be used
LEGAL LANGUAGE AND LEGAL WRITING 145

(i) at the beginning of a sentence or clause and


(ii) after a comma to coordinate two nouns unless it is preceded by but or and. Such
expressions as Also at the airport were the Mayor and Ministers of are meant for
emphasis on the persons.

ALTOGETHER, ALL TOGETHER


When altogether means completely, its use is right but when all means the whole quantity or
number, all together should be used seperately.

AMBIGUOUS, AMBIVALENT
Ambiguous statement is one where only one meaning was intended, but a second is also possible,
e.g. Was he driving on the right side? Ambivalent is one which is intended to have double
meaning, e.g., The worthy leaders of the Party may mean really worthy and respectable
ones or the dirty lot they are.

AMENABLE
Amenable must be followed by to a noun, e.g. amenable to reason, to pressure.

AMEND,EMEND
Amend means alter (usually for the better); emend: means to correct a mistake.

AMONG, AMONGST
Both must be followed by pl. noun or pronoun or a singular noun with plural sense. Old distinction
that a thing is shared between two persons, but among many is no longer observed. Among two,
however, is wrong.

ANYONE, ANY ONE


(i) Anyone can be used only about persons. When reference is to things, any one is required.
(ii) Even about persons, if one has the numerical sense they should ba used separately.
(iii) Anyone is singular. Hence, it is referred to by a singular pronoun or possessive adjective
(e.g. Anyone who does that will only risk his life). This fast usage also applies to
anybody.

APPROVE, APPROVE OF
Approve means give consent to, e.g. approve a plan; approve of: think well of, regard with favour,
e.g. He did not approve of my line of defence. Former is often used in the passive and latter is
usually found in the active voice.

ARTIST, ARTISTE
Artiste means performer.

AS FOLLOWS
It does not matter whether it is accompanied by singular or plural. The grounds are as follows.
(not as follow).
146 LANGUAGE AND THE LAW

ASIDE, A SIDE
Aside is adverb, e.g. set aside. When the sense is on each side, use separately, e.g. eleven a
side.

ASSURE, INSURE, ENSURE


In technical commercial usage, one assures against something that is bound to happen, e.g. death,
and insures against accidents e.g. fire, burglary. Assure also means to promise, to guarantee;
easure means to make sure, to make certain.

AVAIL
(i) All his efforts were of no avail (adjectival), He made repeated attempts but to no
avail (adverbial).
(ii) Used intransitively (e.g. All his efforts did not avail) or transitively, with a personal
object (e.g He availed his special leave) or with a ref lexive object followed by of (e.g.
You must avail yourself of this opportunity).

BESIDES, BESIDE
Use besides only when the meaning is in addition; for all other senses beside should be used.
Beside means by the side of.

BONA FIDE, BONA FIDES


Bona fide means in good faith. It is, strictly speaking adverbial, though it is more often used
adjectivally, e.g. bona fide enquiries, bona fide applicant. Bona fides (good faith) is singular,
e.g. His bona fides is in doubt.

BORN, BORNE
The normal past participle of to bear is borne, e.g. a burden, a good character, responsibility, the
brunt is borne. Born is used as passive only in connection with birth.

CAN, MAY
Can (past tense could) denotes ability or potentiality; may (past tense might) shows possibility or
permission.

CHARGE
In charge of means having care of, or authority over, e.g. Mr. Singh is in charge of P.S.
Kotwali. In the chaige of means subject to control, care or authority of e.g. She was given in
the charge of her legal guardian.

CIRCUMSTANCES (UNDER, IN)


Under the circumstances is more common. However under should be used when the
circumstances affect the speaker; in when they do not.

COHERENCE, COHESION
Coherence means hanging together of spoken or written expression. Cohesion means literal
sticking together of two objects or groups as cohesion of various constituents.
LEGAL LANGUAGE AND LEGAL WRITING 147

COMPARE (TO, WITH)


Compare to means suggest or state a resemblance between two objects as Shakespeare compared
the world to a stage; compare with means to put two objects side by side and note points of
resemblances and differences between them. By comparison and in comparison are usually
followed by with.

COMPRISE, COMPOSE OF, CONSIST (OF, IN)


The delegation comprised of the following persons is wrong. Comprise doesnt take of;
composed of and consist of are correct. Consist in means have as an essential element e.g.
Courage consists in overcoming ones fears.

CONSIDER, CONSIDER AS
Consider needs a direct object, e..g. You may consider the deal settled (not as settled). But
when consider means think about or give ones mind to, as signifies the capacity in which the
thing or the person is to be considered, e.g. You may consider him as her rnentor.

COUNCIL, COUNSEL, CONSUL


Council means an assembly. Counsel when used as verb means advise, and when used as noun
means advice or one who givrs advice, an advocate. Consul is the representative of a foreign
government accredited to another country.

COVERED (IN, WITH, BY)


In is used when covered has the force of an adjective used predicatively, e.g. His boots were
covered in mud. The strict participial use needs with, e.g. The table was covered with a white
cloth. When the word following the preposition is thought of as the agent, the correct preposition
is by, e.g. Is the A. M. U. covered by Article 30 ?

CREDIBLE, CREDITABLE, CREDULOUS


Credible means believable; creditable means bringing credit or honour; credulous means one who
readily believes anything.

DEPRECATE, DEPRECIATE
Depricate means express disapproval of, condemn; depreciate means belittle, go down in value.

DESPITE - IN SPITE OF, NOT WITHSTANDING


Not withstanding is the least emphatic, implies the presence of an obstacle; in spite of suggests
active opposition or strongly adverse considerations to be encountered; despite is lighter in its
emphasis. (Webster). For example, Notwithstanding any Provision in any statute, it shall be
deemed I shall go in spite of the rain. Despite his assurances, I doubted him.

DISTINGUISH (FROM, BETWEEN)


When distinguish means tell apart or notice a difference, it takes from as distinguish one from the
other. When it means make a distinction, use between, e.g. Courts should not distinguish
between persons on the ground of their sex, race or religion.

DOUBT
Doubt as transitive verb takes a direct object or is followed by whether, takes a noun clause, e.g. I
doubt whether (if) he will go. As noun it can take that, about, whether (not as to whether), e.g.
148 LANGUAGE AND THE LAW

(i) There is no doubt that he is guilty.


(ii) I have my doubts about his sincerity.
(iii) I have my doubts whether he will win.

DUE TO, ON ACCOUNT OF, BECAUSE OF


Due is an adjective. Hence due to should be used (i) predicatively or (ii) following a noun, and
introducing an adjectival construction which qualifies that noun. Examples:
(i) His absence is due to illness.
(ii) Mistakes due to catelessness may have serious consequences.
For other senses use, on account of or because of.

ESPECIALLY, SPECIALLY
Specially means for this special purpose, or to this special end, and no other.
Especially means to a degree beyond others. Examples:
I went there specially (not especially) to see her.
There is a dearth of qualified teachers of most subjects, but especially (not specially) of
science.

EVERY DAY, EVERYDAY


Everyday, as one word, should be used only when adjectival, e.g. an everyday occurrence, our
everyday existence. In all other senses use them separetely, e.g. He comes here every day.

EXCEPT, EXCEPTING
Except is a preposition and is followed by the accusative, e.g. Every one except her was
informed, Except excludes a particular one, or particular ones, from a group (everyone except me,
all the girls except Sheeba). Excepting is used only when it is preceded by not, always, or without,
e.g. not excepting the police, without excepting even the highest-placed officials, always
excepting the officers.

FALSEHOOD, FALSITY, FALSENESS


Falsehood means untruth, in the abstract and general sense; falsity means the false nature of a
particular thing (e.g. the falsity of a charge or accusation). Falseness means disloyality, treachery
(e.g. falseness of heart, falseness to one's trust).

FAMILIAR TO, FAMILIAR WITH


Familiar to means known to; familiar with means having a fairly good knowledge of, or quite
close to.

FURTHER, FARTHER
Use further (i) when the sense is additional (further evidence, further information), or (ii)
when as verb it means advance, promote (He did it to further his own interests). Farther as adj.
or adv. denotes distance, though here also further is permissible.
LEGAL LANGUAGE AND LEGAL WRITING 149

FOREGO, FORGO
Forego to go before, is generally used in participle forms (the foregoing clauses, a foregone
conclusion). Forgo means to do without something to which one is entitled, e.g. forgo one's
holiday or claim.

GOLD, GOLDEN
Use gold when it means made of gold (a gold ring, a gold watch, gold coins). Golden is used (i)
for colour, (golden hair) or, (ii) for figurative use (the golden period, a golden opportunity).

HOPE
(i) Hope as verb may be followed by an infinitive referring back to the subject (I hope to
meet her in London), but it connot take an accusative infinitive (We hoped him to be
convicted is wrong; We hoped that he would he convicted is correct)
(ii) Hope for can be used both in the active and the passive voices, but hope can be used in
the passive only when the subject is it.
(iii) The plural hopes always takes a gerund (e.g. The partys hopes of winning the next
election (not hopes to win). The singular hope also needs gerund when hope carries
the sense of chance or likelihood (He hasnt much hope of getting acquital).

HOWEVER, HOW EVER


(i) When ever generalises, however is used as one word (However we do it, it will be pretty
difficult).
(ii) If ever emphasises, the two words (how ever) are used (How ever did you find it in that
mess?)
(iii) However, used, as conjunctive or disjunctive needs a comma (However, we need not
take up the issue right now.)
(iv) Disjunctive however means but. Hence both should not be used together. But may
precede however only when however is adverb of manner or degree, e.g. But however
hard he tried, he could not succeed.

IF, WHETHER
The two are used interchangeably, but use if when the fact in question is something which you
desire or when you hope for a positive answer, e.g. Will you check if she has come back?, and
use whether when you merely wish to satisfy yourself one way or the other e.g. Will you check
whether she has come back?

ILLEGAL, ILLEGITIMATE, ILLICT


Illegal means expressly forbidden by law land; illegitimte means not recognised by law or not
having the sanction of law; illicit, in itself, does not necessarily refer to law; it may be only
immoral. Unlawful is more or fess a synonym of illegal, but it applies over a wider field. While all
things that are illegal are unlawful, all things that are unlawful are not necessarily illegal. In the
context of moral or religious law, illegal is never used, e.g. if a Muslim drinks wine, he does
something unlawful though not illegal.

IN ORDER THAT, IN ORDER TO


In order that is never followed by can/could or will/would. The usual verb is may/might or
sometimes, shall/should, e.g. We came early in order that we might get a good seat, or She left
150 LANGUAGE AND THE LAW

by the side door in order that no one should see her. In order + infinitive means for + ing is
correct, e.g. He checked her previous statement in order to find out the truth.

INFAMOUS, NOTORIOUS
Infamous means evil or wicked; notorious means well known for something irreputabie.

INGENIOUS, INGENUOUS
Ingenious means clever; ingenuous natural, artless, free from deceit.

INTO, IN TO
Into is a preposition that introduces an adverb phrase, e.g. A person goes into a room, a house, a
shop etc. In and to should be written separately
(i) when in is an adverb attached to the verb and to a preposition governing the noun
following, e.g. Entries should be sent in to the Editor, or
(ii) When to is part of an infinitive, e.g., They went in to look at her haggard face.

ITS, ITS
As in the case of hers and yours, there is no apostrophe in the possessive its. Its is short for it is or
it has.

LOADED, LADEN
The past and past participle of load, is loaded. Laden, as an adjective means heavily burdened.
e.g. a ship laden with cotton bales. Fire-arms are loaded.

MASTERFUL, MASTERLY
Masterful means assertive, strong-willed, determined to be master; masterly means skilful, in the
manner of a master of the craft.

MEANTIME, MEANWHILE
Both are used as adverb, though meanwhile is to be preferred. In the meantime is equally
common and preferable. Meanwhile is for shorter duration.

MEET, MEET WITH


Meet is subjective, meet with objective. The person or the thing that meets someone or something
is the agent, the person or the thing that meets with something is affected by the thing met. e.g. we
meet a friend, our obligation, or a deputation; we meet with an accident, a misfortune, or our
efforts meet with success.

MENACE, NUISANCE, ANNOYANCE


Menace means threat, danger. Hence, it should not be used as a synonym of nuisance, annoyance
or mischief.

MOMENTARY, MOMENTOUS
Mementary means occurring in the space of a moment (e.g. a momentary thought or suspicion);
momentous means important on account of the consequences. e.g. a momentous decision.
LEGAL LANGUAGE AND LEGAL WRITING 151

NAUGHT, NOUGHT
Use nought when it is equal to zero, naught when it is nothing, e.g. came to naught. set at naught.

PARTLY, PARTIALLY
Partly means as regards one part; partially is an adverb of degree, and is opposed to partly (e.g. It
was partly done by me. The relief was only partially granted.)

PERMIT, PERMIT OF
See Admit or Allow above.

PICK, CHOOSE
Choose suggests careful thought and deliberation, and the weighing of one against another; pick
suggests mere selection, sometimes in a rather perfunctory manner.

PRACTICE, PRACTISE
Practice is noun; practise is verb.

PREFER
(i) Prefer is normally followed by to not than Izzi prefers coffee to tea, or He prefers
going by car to travelling by train). But, when infinitives are involved, it needs rather
than (e.g. She preferred to resign rather than to work under him).
(ii) Prefer means place before other; hence, it is an absolute term, and cannot be modified by
more or most. Which do you prefer more? or Which do yo prefer most? is wrong.

PRETENCE, PRETENSION
Pretence means make believe. She made a pretence of fainting. Pretension means claim (His
pretensions are without any foundation).

PURPORT
As noun the purport of a document is its apparent meaning. It does not suggest either that the
patent meaning is true or that it is not. As verb it can be used only in the active voice and with an
impersonal subject, e.g. This letter purports to be a copy of one sent by her on June 25. Present
participle purporting followed by infinitive (e.g. purporting to bear his signature) is allowed.

PURPOSELY, PURPOSEFULLY, PURPOSIVELY


Purposely means intentionally; purposefully means in a determined manner; purposively means in
such a manner as to achieve an end or purpose.

RESIGN, RESIGN FROM, RESIGN TO


One resigns a post or a position, resigns from an institution or organisation, and is resigned to his
fate because there is no escape from it.

RESORT, RECOURSE
One resorts to compulsion or has or takes recourse to something. We do something as a last
resort, not as a last recourse.
152 LANGUAGE AND THE LAW

SENSUAL, SENSUOUS
Sensual means appealing to the bodily (usually sexual) appetite (sensual pleasures); sensuous
means appealing to the senses of sight, taste, smell etc. (sensuous imagery of Keats).

SPOILED, SPOILT
When spoil means rob, ravage, lay waste or mar, past tense and past participle are spoiled, when it
is meaning ruin, spoilt is used. For example, His essay was spoiled by careless mistakes and
The bad egg spoilt the cake. In attributive uses, spoilt is the usual spelling, (a spoilt child,
spoilt ballot paper).

SUMMON, SUMMONS
Summons is singular noun (A summons was served upon him or She received a summons to
assist the Commission). Summon is verb. Summons can also be used as verb, but it is rare.

TILL, UNTIL
There is a tendency to use till for a point of time and until for duration. Dont do anything further
till you hear from me. The goods will not be released till you pay the whole price. She lived
with her aunt until she married). Until is also more common when used (i) at the beginning of a
sentence, or (ii) when result, not merely time, is expressed.

Bring out the difference between the uses or meanings of the following and use them in sentences
of your own:

allusion - illusion ill sick pitiable - pitiful

between - during infer imply prescribe - proscribe


canvas - canvass lack - absence want principal - principle
confirm - conform latter later proceed -process
contemptible - contemptuous lawful legal proportional - proportionate
corporal - corporeal luxuriant luxurious relation - relationship - relative
corroborate - verify may shall rise - arise
defer - postpone -adjourn meet assemble rouse - arouse
draft - draught occupant occupier though - although
forbidding - foreboding permissible permissive wait - await
CHOICE OF WORDS*
ABET, INCITE, INSTIGATE
Abet means to cause, to assist, to command, to make mere suggestion for a crime; incite means to
provoke, to inflame; instigate means to stir up other persons to bring about a certain object. (AIR
58 Pat. 259), to goad on, to coax one into doing.

ABOLISH, ABROGATE, REPEAL


Customs, systems, traditions etc. are abolished. Laws are repealed by the Legislature after a
formal declaration to this effect. They are abrogated by subsequent acts or laws without a formal
declaration that the former has been done away with.

ACTION, ACT
Action means a process, a step; act means a completed action.

ACCUSED, GUILTY
Accused is a person charged with an offence; guilty, in common parlance, is one who commits an
offence; in law, one who has been found by a court to have committed the crime he was accused
of.

ACKNOWLEDGE, ADMIT, CONFESS, OWN


Acknowledge means to signify receiving or acceptance, admit means to own, confess means to
make a formal admission; own is to take full.responsibility.

ADAPT, ADOPT
Adapt means to adjust to suit to a new situation, adopt is to take like one's own as adopting a child,
system or a custom.

ADMISSION, ADMITTANCE
Admission is allowing; admittance is more formal and means leave or right to enter.

AFFECT, EFFECT
Affect is verb; its corresponding noun is effect. Affect also means to assume, as a form of
affectation. Effect as verb means to bring about or to achieve, e.g. to effect a change or an escape.
Effects as plural means results and personal belongings.

AFFINITY, CONSANGUINITY
Affinity is closeness between two; in law, relationship by marriage as distinct from consanguinity
which means relationship by blood.

AGENT, TOUT
Agent is either nominated or accepted by consent to act as representative of another (AIR 1959
Assam 200/203) ; tout is a self-imposed middleman who hangs on as a go-between.

*
These groups of words are a random sample, meant for discussion and practice in the class-
room. For very specialised meanings or for finer legal distinction between meanings of these or
other synonymous words, please look into the Law Dictionaties, Lexicons, Digests or to the
Definition clauses in the statutes concerned.

153
154 LANGUAGE AND THE LAW

AGREEMENT, CONTRACT
Every contract is an agreement but every agreement is not a contract. A lawful agreement with
consideration amounts to a contract.

ALLEGIANCE, LOYALTY
Allegiance is a subjects formal obedience to the sovereign or superior; loyalty is faithful personal
devotion of one for another.

ALLOW, PERMIT
Allow means not to stop, to give consent; permit means to give approval after due consideration.

ALTERNATE(LY), ALTERNATIVE(LY)
The former means to follow by turns or to come one after the other; the latter, choice excluding
others.

APPROPRIATE, PROPER, RIGHT, SUITABLE


Appropriate is based on propriety; proper means correct; right means not wrong; suitable is that
which is convenient and hence suits.

APPROVAL, CONSENT, CONNIVANCE


Approval is that,.and only that, which one has with full knowledge approved (Stroud); consent
means acquiescence or to agree (AIR 1958 Raj. 332). It may be implied, or express; connivance is
a consent, indirectly given, for doing something unlawful (Bouvier's Law Dictionary).

ARBITRATOR, ARBITER, JUDGE


Arbitrator is appointed by the consent of the parties; arbiter is one who decides a dispute; judge is
one appointed to hear and settle causes or to try the accused person; one who judges merit as in a
competition.

ARGUE, PLEAD, ENTREAT, REQUEST


Argue is to advance reasons, to pile arguments in support of ones premise; plead is to advance or
put forward ones cause; entreat is to attempt to move one's heart by arousing emoticns of
sympathy or pity; request is a humble prayer, a wish

ASSAIL, ASSAULT, INVADE, RAID, ATTACK


Attack is generic; assail is to attack honour, position or stand; assault is to attack body or person;
invade is to attack a territory, as in war; raid is a sudden and violent attack on house or a site.

AUTHORITY, LICENCE, POWER


Authority and power are used interchangeably. Auhotrity is legal right or power vested in some
one or some agency to do something; power has a wider and more general meaning. power is the
attribute of authority. Authority is the focus of power, it is the status capacity of power: licence is
a formal right or permission granted for doing, a specific thing; authorities (pl.) are persons vested
with powers.

BAIL, BOND
Bail is to set an arrested person at liberty; the person who gives security for his appearance for
trial becomes a surety. Bond is that instrument which binds a person to another for payment of a
sum or fulfil a condition in case of default.
LEGAL LANGUAGE AND LEGAL WRITING 155

BELIEF, FAITH
Belief is conviction based on reasoning; it reflects a mental attitude; faith is an emotional attitude.
Its seat is our heart. Good faith is upright mental attitude and clear consience.

CENSURE, CENSOR, IMPEACH


Censure means to blame, to condemn, to find fault with; censor is to condemn on the ground of
public morality; impeachment means a formal trial of certain high off icers of state by the
legislature.

CESS, TAX, LEVY


Cess indicates tax on particular thing, not forming part of the general fund (AIR 1960 Mad. 160);
it is more like excise duty. Levy is temporary charge usually on agricultural produce.

CHOICE, ALTERNATIVE
Choice gives a wider range of selection; alternative limits it to two or three, to the exclusion of
others.

CITE, QUOTE, REPEAT


Cite is to call orsummon, act of quoting, giving, reference to a case, passage or name; quote is
using words used by another without any change; repeat means to say again for emphasis, do
again.

CITATION, RULING
Citation means (1) giving reference to an interpretation given earlier e.g. AIR 1960 Mad 160, (2)
to mention name and work of someone; ruling is authoritative interpretation given by higher
courts, generally binding on the lower ones.

COMPLEX, COMPLICATED, INTRICATE


Complex means consisting of parts; not easy to comprehend or solve; complicated means made
difficult to unravel or smoothen; intricate means involved, entangled.

COPY, DUPLICATE, FACSIMILE (FAX), PHOTOSTAT


Copy is an accurate or full imitation or reproduction of the original (1967 SC 526); duplicate
means two-fold, same as another; facsimile is that appears similar to the original; photostat is
photographic reproduction of the original.

COPYRIGHT, TRADE-MARK
Copyright means (1) Ones right to his own literary composition, to that piece and its copies,
(2) Ones exclusive right of multiplying copies and excluding others from copying it; Trade-Mark
is any name or device warranting goods for sale as genuine product of a firm.

CRIME, OFFENCE
Crime is any positive or negative act in violation of penal law, an offence against the State. It
denotes such offences as are of a deeper and more atrocious dye. (Blacks Law Dictionary);
offence is anything that offends or transgresses a law.

CRIMINAL, PENAL
Criminal has a wider connotation, anything pertaining to crime or criminai mentality; penal is
only that which is within the purview of the penal law of the land.
156 LANGUAGE AND THE LAW

CUSTOM, CONVENTION, TRADITION


Custom is to society what law is to the State (Salmond). It is rule of conduct established by long
usage; convention is (1) the most general name given to agreements, established usage or fashion
etc., (2) an assembly of delegates; tradition means consistent usage or behaviour.

DECEIT, DECEPTION
Deceit is the tendency to play fraud; it is a part of ones character, deception is the actual act of
fraud played upon someone.

DESCENDANT, HEIR
Descendant includes children and their children and their children to any degree; heir is one who
inherits the property by blood-connection or nomination.

DIRECTIVE, ORDER
Directive is a general instruction which may or may not be binding; order is a command of the
superior, violation of which may be visited with penalty; specif ic instruction to do something.

DISCHARGE, ACQUITTAL
The former is to release on account of want of evidence; the latter is after holding the accused not
guilty.

DISMISS, REJECT, SET-ASIDE


Dismiss is to throw out (as from service) or not to accept; reject means not to agree to, not to
recognise; set aside means cast away, store away (e.g. part of money) hence derivatively to reject
an earlier finding or order.

DISINTERESTED, UNINTERESTED
The former means having no personal advantage to gain; the latter, unwilling to give attention to,
bored. e.g. A judge should be disinterested but not uninterested in a case.

DOUBT, SUSPECT
Doubt means to be apprehensive, to hesitate in believing, to distrust; suspect means to feel an
inkling, a fear, mistrust. The f ormer reflects a mental, the latter an emotional response.

ELICIT, EXTRACT, EXPORT


Elicit means to draw forth, to evoke by persuation; extract means to draw out by force or
otherwise, to derive something by putting pressure; extort is to wring out or to gain by
compulsion, violence or by putting under fear.

EVACUATE, VACATE, LEAVE, GIVE UP, GIVE OVER


Evacuate means to throw out the contents of, to remove from a place; vacate is to make or leave
empty, to quit, to annul e.g. a stay order; leave means to abondon, to depart from (also to allow to
remain); give up means to leave a habit or job, to surrender; give over means to hand over right
and possession, to transfer to another.

EXONERATE, EXTENUATE
Exonerate is to absolve from, to clear of the accusation; extenuate is to loosen the grip or lessen
the gravity of a charge.
LEGAL LANGUAGE AND LEGAL WRITING 157

FABRICATE, FORGE
Fabricate is to put together by art, to devise, falsely, hence fabrication, falsehood; forge is to make
falsely, to counterfeit or imitate for purposes of fraud (also to go ahead).

FATAL, LETHAL
Fatal is that which causes death; lethal is that which has the capabillity te cause death or has death
in it.

FORBID, PROHIBIT, PREVENT


Forbid means to stop a person from doing something, to command not to do; prohibit is to
interdict, to forbid by law doing or use of something; prevent is to preclude, stop, keep, or hinder
effectually, to forestall.

FOREIGNER, ALIEN
Foreigner is belonging to a foreign land; alien is extraneous, an outsider, a resident neither
nativeborn nor naturalised.

GIFT, AWARD, REWARD


Gift is voluntary tranfer of any property without consideration by one in favour of another, award:
thing given by way of compensation or for acknowledging some work of the doer or decision
given by a tribunal or commission; reward, prize or recompense.

INDEPENDENCE, LIBERTY, FREEDOM, LICENCE


Independence is the state of being independent, a competency; liberty is the quality of a free mind;
freedom is the state of being not bound, unconstrained; licence is the uninhibited freedom, usually
moral laxity.

INFER, IMPLY
Infer is to suggest, without actually stating; imply means to read a meaning into, draw a
conclusion.

INJURY, DAMAGE
Injury is generic. In law it is any actionable wrong; damage is specific, usually measured in terms
of loss in monetary value. Damages (pl.) compensation for a loss or a wrong (e.g. a tort).

INSURE, ENSURE, ENTRUST


Ensure is to make certain of; insure means to guarantee against loss, death, accident, fire etc.;
entrust is to hand over something to some one for a specific purpose (1964 M.P.L.J. 753).

INSURGENT, BELLIGERENT
Insurgent is one who rises in revolt against the established authority, a rebel; belligerents are those
recognised legally as a party or a group waging war against the group in power.

INQUIRY, ENQUIRY, TRIAL, INQUEST


Inquiry is investigation by a court or a magistrate (AIR 1966 ALL 68); enquiry is search or request
for information, more often used in pl.; trial means the conclusion by a competent court of
questions in issue whether civil or criminal, (Stroud) hearing of a cause, civil or criminal, before
a judge. (Whartons Law Lexicon); inquest is the inquiry by a jury or sheriff into any cause civil
or criminal (Brownss Lew Dictionary). It is, however, confined to the search after sudden or
violent death.
158 LANGUAGE AND THE LAW

JUDICIAL, JUDICIOUS, JURIDICAL


Judicial is relating to duties exercisable by a judge or justices in court (AIR 1958 Punj. 69);
judicious means based on justice, just, fair; juridical is relating to the distribution of justice, used
in courts of law.

JUSTICEABLE, JUSTIFIABLE
Former means that which can be heard and decided upon by a court; latter means that which can
be justified on any ground.

KIDNAP, ABDUCT
Both of Swedish origin. Formerly kidnap (kid-nappa) meant lifting of a child for collecting
ransom and abduct (ab-duco) meant taking away a daughter, obviously for immoral purposes.
Now used interchangeably.

OBSCURE, OBSOLATE
Obscure means unknown to fame, living or enveloped in darkness; obsolete means gone out of
use, no longer functional or fully developed.

OBSERVANCE, OBSERVATION
Former means paying due regard or attention to e.g. observance of rules, regulation, latter means
capacity to see or something one sees.

OFFICIAL, OFFICIOUS
Official is pertaining to office, done under authority, issued or authorised by a public authority;
officious is very ob1iging, too forward in offering unwelcome or unwanted services.

OWN, POSSESS, OCCUPY, HOLD


Own is to have proprietary right; possess is to exercise that right; occupy means to take physical
possession of something; hold is to keep in ones control and power (for hold also refer to the
Chapter on Verbs).

PARTITION, DIVISION
Partition is the act of dividing into separate geographical parts; division is the act of dividing, state
of being divided, a section, a portion of the whole.

PATENT, LATENT
Patent is lying open, obvious, conspicuous, ident; latent is concealed, not visible, dormant but
capable of development.

PERMISSIBLE, ADMISSIBLE
Former means that which can be permitted or allowed; latter, that which can be addued as eidence
or claim and can be legally admitted or received.

POSITION, SITUATION, CONDITION


Position means rank, status, stand, posture; situation and condition are used interchangeably for
circumstances surrounding a thing or a person; situation also has a geographical connotaton, as
condition also means state of affairs or event which attaches to an obligation; or a restraint placed.

PRACTICAL, PRACTICABLE
Practicable is such as can be carried out practical is either based on past practice or suited the
existing situation.
LEGAL LANGUAGE AND LEGAL WRITING 159

PRECEDENT, EXAMPLE
Precedent is that which has happened or been before; example may be real or just an imaginary
thing.

PROOF, EVIDENCE, WITNESS


Proof is that which proves. There is a clear distinction between legal proof and moral conviction.
Once the evidence comes bafore the court and stands the test of severe legal scrutiny, it constitutes
legal proof (AIR 1944 All 94). Evidence is that which is adduiced to establish a fact e.g. oral
evidence or exhibit. Witness is the person who tenders evidence for establishing a fact.

PROPOSAL, PROPOSITION
Proposal is a suggestion, an offer, the act of proposing; proposition is an act of propounding or the
thing propounded.

PROSECUTION, PERSECUTION
Prosecution is to pursue by law, to bring before a court, to follow onwards (as a plan); persecuton
is to harass, afflict, hunt down, especially for religious or political opinions.

QUALIFIED, FIT
Former means one who possesses the necessary qualifications; the latter means one who is
suitable for the job with or without the necessary paper qualifications.

REFUTE, DENY, REPUDIATE, DISOWN


Refute is to challenge, to question the validity or truth; deny is not to admit; repudiate is to
divorce, to reject, to cast off, to refuse or cease to acknowledge; disown is to refuse to own or
acknowledge as beloriging to oneself.

RIGHT, LIBERTY
Right is an interest created or recognised and protected by another or law; liberty is an inherent
quality of a free mind, freedom and authority to do anything even if wrongful or illegal. Hence,
law which confers right, also curtails liberty.

ROAD, ROUTE
Road is a kutcha or pakka track suitable for wheeled traffic, especially for thorough
communication, a street; route is a way, or course ihat is traversed.

SECURITY, SURETY
See Bail, Bond above.

SIMILAR, IDENTICAL
Similar is like (4 Bom. L.R. 390), resembling, exactly corresponding in shape without regard to
size; identical is very same, not different.

SLANDER, LIBEL
Libel means false defamatory words, written and published including such words spoken in
talking films; slander means a false, malicious defamation by spoken words or by looks signs and
gestures.
160 LANGUAGE AND THE LAW

SPECIMEN, SAMPLE
Specimen is that which promises that others would be like, an object serving as a sample,
especially for purposes of study and collection; sample is a small portion to show the quality of the
whole.

STIPULATION, CONTRACT
Any lawful agreement based on conbideration is a contract. Stipulation may be a condition
attached to it.

SUBMIT, SURRENDER
Submit is to yield to subordinate, to refer for decision or consideration, to lodge, to put forward in
respectful contention; surrender means to deliver over, to relinquish, to yield up, to resign; as
noun it may also mean merger as understood in English law.

TEMPORARY, PROVISIONAL
Former means not permanent; latter is for the time being.

UNLAWFUL, ILLEGAL, CRIMINAL


Unlawful is not recognised by law; illegal is that which violates a law; criminal is that which
constitutes an offence punishable by the law of crimes.

UNSOCIAL, ANTI-SOCIAL
The former is one who does not move much in society, who mostly keeps himself; to himself
the latter is one who is cpposed to the social norms, a nuisance to society.

ULTERIOR, EXTRANIMUS
Ulterior is beyond what is seen or avowed; hence ulterior purpose or motive means some purpose
or motive other than the declared one (AIR 1957 SC 676); extraneous means external, not
belonging to or dependent on a thing, not essential.

ULTRA VIRES, INVALID, IRREGULAR


Ultra vires means beyond power, or outside the scope of authority; invalid is having no validity in
the eyes of law; irregular is that for the validity of which certain formalities are necessary and
have not been gone through (AIR 1962 S.C. 554).

VARIOUS, DIFFERENT, SEPARATE


Various means several unlike each other, uncertain, variegated; different means distinct, unlike,
not the same; separate means physically away from, not connected with.

WAGES, SALARY
In general salary is used for payments of servants of higher classes for longer durations and
wages is confined to the earnings of labourers and artisans (AIR 1926 All. 175). Both may be
used interchangeably as both are emoluments paid to an employee by way of recompense for his
labour. Neither is a term of art, (1964 S.C.J. 334).

WORTH, VALUE, PRICE


Worth is that quality which renders a thing valuable, moral excellence, instrinsic merit; value
means generally monetary equivalent, amount or market price of the subject~matter of the suit
(ILR 28 All. 548); price is the value in cash or kind demanded exchange fora thing.
LEGAL LANGUAGE AND LEGAL WRITING 161

Distinguish between the meanings of the words in the following pairs:


ambiguous ambivalent deprecate depriciate partiaily partly
amend emend dissolve prorogue practice practise
artist artiste especially specially pretence pretension
assure ensure infamous notorious purposely purposefully purposively
coherence cohesion ingenious ingenuous recourse resort
confirm conform jurisdiction scope seldom occasionally
council counsel consul likely probably possibly security surety
162 LANGUAGE AND THE LAW

PREPOSITIONS
Fill up the blanks by suitable prepositions
1. The treasurer has absconded the funds the club.
2. The accused was absolved all blame.
3. Just acquaint this gentleman the facts the case question.
4. I refuse to acquiesce this plot the government.
5. He assured me his full co-operation the business.
6. He has been addicted hashish years.
7. Do you adhere any special political opinions ?
8. I suggest we retire the Council room further discussion the subject
consideration.
9. Our newspaper aims having a million readers next year.
10. Twenty thousand are allocated the purchase books general interest.
11. I appeal you mercy the prisoner.
12. The advocate has been briefed all the aspects this case.
13. We have not arrived any decision this matter.
14. I refuse bargain you the price those conditions.
15. She was indifferent his protestations love.
16. Please dont consort those men. They are not worthy you.
17. He bequeathed his whole estate the Gandhi Eye Hospital.
18. He was prevented taking the matter his lawyers.
19. showing disrespect the judge, he was sent fifteen days.
20. Law is a rule conduct binding a community.
21. Clap the thief jail and deprive him any further opportunity stealing.
22. I am collaborating him writing a book.
23. Her beautiful voice compensates her hideous face and lack intelligence.
24. You cant conceal your faults your master, so it is no use your thinking excuses.
25. Does the other doctor concur this opinion your illness ?
26. The manager is conferring the board a matter importance.
27. Your story conflicted that of other eye witnesses, whose versions all tally one another
the minutest detail.
28. You must conform the rules the game all events.
29. The police connived his escape.
30. He has not contributed much the solution the problem.
LEGAL LANGUAGE AND LEGAL WRITING 163

Answers:

1 2 3 4 5 6 7 8 9 10
with from with in of to to to at for
of of against in for for by of
in on of
under

11 12 13 14 15 16 17 18 19 20
to about at with to with to from on of
for of in on of of to to on
on under to of
for

21 22 23 24 25 26 27 28 29 30
in with for from with with with to at to
of in of of about on with of of
of of in in
164 LANGUAGE AND THE LAW

PHRASAL VERBS
Technically they are called phrasal verbs, because they are formed by two or more words. Thus,
they are not words, but phrases.

What are phrasal verbs?


A phrasal verb is a verb followed by one or two adverbs or prepositions. Here are some examples:

get up break down look after look forward to run out

It is usually impossible to guess the meaning of phrasal verbs just from knowing the meaning of
the verb and the adverb or preposition. For example, give up something means to stop doing
something. It has nothing to do with giving things. Therefore they are called idiomatic verbs.
Following are some of the examples:

break away clear ... of, from hang about make out take back
break into (an accusation) hang for make over take down
break open clear off hang together make away take for
break out clear up make up take over
break through hold back take up
break up give away hold by put down
break with give in hold in put forward
give out hold together put off
bring about give over hold up put on
bring down give up put out
bring forward let down
bring out go on let in set about
bring round go over let into set apart
bring up go through let off set aside
let out set down
set forth

Phrasal verbs with more than one meaning


One phrasal verb can have more than one meaning. Often, the meanings are not related.

Just pick up the phone and ring her!


She picks up languages really easily.

Write two sentences for each of these phrasal verbs, using different meanings for each sentence:

turn out catch on come under sth fall apart


LEGAL LANGUAGE AND LEGAL WRITING 165

The grammar of phrasal verbs


Some phrasal verbs have objects, some do not, and some sometimes have objects and sometimes
do not. This is shown in the way the phrasal verb is written in the dictionary. The way the phrasal
verb is written also shows you whether the object is a person, a thing, or an action.
Phrasal verbs that do not need an object are shown like this:

check in e.g. You need to check in three hours before the flight.
drift off e.g. The room was so hot I could feel myself beginning to drift off.

Phrasal verbs that need an object are shown like this:

pack sth in e.g. I packed in my job to go travelling.


pack sb off e.g. They packed him off to school in Paris.

Note that sth means something, and sb means someone.

Phrasal verbs where an object is sometimes used and sometimes not used are shown like this:

pack (sth) up e.g. I packed up all my belongings and left the house.; Could you help me
pack up?

Prepositions following phrasal verbs


Many phrasal verbs are often followed by particular prepositions. These are shown in dark type
in the dictionary.
e.g. He dressed up as a ghost.

Fill in the gaps in these sentences with the correct prepositions.

1. She stood in ___ her boss while he was sick.


2. Just carry on ___ your work.
3. She looked back ___ her days as a student with nostalgia.
4. Hes always going on ___ his car.
5. We will have to cut back ___ our spending.
Answers:
1. She stood in for her boss while he was sick.
2. Just carry on with your work.
3. She looked back on her days as a student with nostalgia.
4. Hes always going on about his car.
5. We will have to cut back on our spending.
166 LANGUAGE AND THE LAW

Fill in the gaps in these sentences with the correct phrasal verbs.
1. If you carry ___ spending like that youll have no money left.
2. I nodded ___ after lunch.
3. The brakes suddenly seized.
4. It took him a long time to get ___ her death.

Answers:

1. If you carry on spending like that youll have no money left.


2. I nodded off after lunch.
3. The brakes suddenly seized up.
4. It took him a long time to get over her death.
LEGAL LANGUAGE AND LEGAL WRITING 167

SOME SPECIAL VERBS


Verbs constitute the backbone of English. Hence a mastery of their varied structural patterns is
essential. In the following pages we shall consider various uses of some of the important verbs.

1. TO BE, TO HAVE, TO DO
BE (a) to be as an ordinary verb used for giving information:
(i) He is a party to this contract.
(i i) The Parliament is in session now.
(i i i) They are members of the Board.
(iv) I am not a practising lawyer.
(v) He was an honest broker.
(vi) They were guilty.

(b) to be followed by introductory words It and There.


(i) It is quite late now.
(i i) There were six members at the meeting.
(i i i) It is unwise for an advocate to quarrel with the Bench.

(c) to be as an auxiliary verb.


(1) for continuous tense with ing form of the Main verb:
She was defending against the charge of abduction
X is going to Delhi.
(2) for passive voice followed by past participle of the transitive verb:
Gita was kindnapped, raped and murdered by those ruffians
He was dropped from the Cabinet.

(d) to be with infinitive for conveying an instruction:


(1) for conveying an instruction:
(a) She is to appear before the Commission on Monday.
(b) No person is to leave the enclosure unless cleared by the Custom Off
icer on duty.
(c) You are to proceed atonce and submit your report within 48 hours.
(2) to express an arrangement or plan:
(a) The case is to be taken up at 2 O clock sharp.
(b) She is to arrive in half an hour.
(c) He is to visit the riot-affected localities to get first-hand account of the
happenings there.

HAVE (a) as an ordinary verb:


(i) He has no ostensible means of living.
(ii) They have plenty of money to squander about.
(iii) He had a nice job, but he gave it up.
168 LANGUAGE AND THE LAW

(b) as auxiliary verb in perfect tenses:


(i) She has deserted her husband.
(ii) He has shown their nude photographs to the Prime Minister.
(iii) He had committed a gruesome murder.

(c) as auxiliary verb in perfect continuous when the sense is till now:
(i) He has been waiting for you for two hours.
(ii) They had been operating in Bombay since 1975.
(iii) I have been telling you ever since they came into power that they would
only ruin the country.
N.B.: Since for point of time and for for duration.

DO (a) as an ordinary verb:


(i) It is he who did this mischief.
(ii) I do all the work and she does nothing.
(iii) These days he is doing nothing.
(iv) He was doing very well in his business when suddenly he left it.

(b) as an auxiliary verb in negative statements or questions:


(i) Do you do this this type of work?
(ii) What did you do to him ? He is so upset.
(iii) He did not appear and the Munsif did not allow another adjournment.
(iv) Now she does not, (we do not) reside there.

(c) for emphasis, request or question tags:


(i) He did borrow Rs. 1000/- from me. (emphatic)
(ii) I do take it as an insult. (emphatic)
(iii) Please do appear on my behalf. (request).
(iv) He shouted at you, didnt he? (question tag)
(v) You dont visit her, do you ? (question tag)

Dont do that. Dont say that. Why are you smiling like that, are correct, but Dont do like
that, Dont say like that are wrong. Do and say are transitive verbs. Hence they need direct
object immediately after them. Smile' being intransitive, must take the preposition like.

2. SEE, HEAR, FEEL, LET, MAKE


(i) From the window I saw the procession on the street, but I was looking at that man
throwing something from his balcony.
This sentence shows the difference between see and look at. We see anything that passes
before our eyes; we look at something which we want to see. A parallel to this pair is
found in hear and listen to. We hear any sound that reaches our ears, whether we want to
listen to it or not. Looking and listening are voluntary actions, seeing and hearing,
involuntary.
(ii) I saw her take (taking) the locket from your table.
LEGAL LANGUAGE AND LEGAL WRITING 169

(iii) I heard the door open (opening).


(iv) I felt something crawl (crawling) on my neck.
(v) He let me use his bicycle.
(vi) The S.P. made him walk to the police station in handcuffs.
In (ii) to (iv) we have verbs followed by an object and then an infinitive (without to) or an ing verb
(a gerund).
The verbs let and make are followed by an object and an infinitive without to, not by an ing word
as in (v) and (vi) above.
In addition to their literal meaning the above verbs have a variety of others, for example:

SEE 1. I see that you dont want to make a statement.


2. Why dont you see a doctor?
3. I saw red when he blamed me for his mistake.
4. Shell see to it that everything necessary is provided for the occasion.
5. Cant you see the difference between the two impugned judgements.

HEAR 1. I hear that Nassrin is going to England.


2. I have not heard from Rose for years.
3. Please hear him out before you blame him.
4. Give him a patient hearing.
5. Hearsay is not addmissible as evidence.

FEEL 1. I felt lonely so I went to the club (not felt myself).


2. He felt (thought) that he was in the wrong.
3. Leela felt like crying when she was not selected.
4. He felt offended at that remark
5. I felt like doing it.
6. The doctor felt her pulse and pronounced her dead.
(Sentences (3 & 4) express actual feeling or emotion).

LET 1. Lets go to the Police Station (a suggestion).


2. You know I was absent, but dont let out this secret.
3. When he let go (stopped holding) the rope, he fell.
4. She let him down (disappointed him).
5. When Diwali approaches children let off crackers.
6. He had behaved improperly but the officer let him off (did not punish him).
7. There should be no let-up in the drive for family-planning.

MAKE 1. Your suspicion has made him angry.


2. You made a fool of me with your contradiction of my statement.
3. Every morning in the hospital the nurses make the beds.
4. We havent much money; we must make do with what we have.
5. They tried to make out that I was to blame.
170 LANGUAGE AND THE LAW

6. The culprits made away with my chain before I was aware of what had
happened.
7. Whein the rain started we made for the nearest shelter.
8. I cant make out his hand-writing.
9. A carpenter makes chairs and tables.
10. He made over his entire property in return of a handsome annuity.
11. They quarrelled bitterly and then made it up.
12. I dont know what to make of it.
13. Have you made up your mind or are still undecided.

3. VERBS NOT USED IN THE CONTINUOUS TENSE


In addition to the factitive verbs and see, hear, feel, in their literal sense there are other verbs
NEVER used in the continous tense:

to have when it means


(i) to possess: He has a large family, and
(ii) obligation: He has to go to Calcutta next week.
(But we can say We are having a party next month).

to belong, (This book belongs to the Law Library.) to contain, to seem, to appear, to rnean, to
know, to understand (You must be knowing Rekha. I am understanding Hindi very well are
wrong), to love, to like, to want (wish, desire), to hate, to need, to consist, to intend, to recognize.

4. SEEM, APPEAR, FIND


(i) He seems (to be) an Iranian. He appears to be a Palestinian.
(ii) She seems (appears) worried.
(iii) It appears (seems) that Claudius, not Govinda, is to be made Captain.
(iv) He seemed (appeared) (to be) trustworthy but he proved (to be) dishonest.

With find we get a number of constructions, for example:


(i) He found him a difficult person to deal with.
(ii) She finds that she cannot afford the cost of such a prolonged litigation.
(iii) He finds Arabic hard to learn.
(iv) Can you find me a pair of scissors to cut this string ?
(v) The magistrate found him guilty and sentenced him.
(vi) He is finding it hard to manage on his meagre income.
(vii) On opening the book we find the following sentence.
(viii) Hes always finding fault with me.
(ix) Inspector Gill found out the missing link.
(x) Do anything you like but dont get found out.
(xi) I found him making a hole in the wall.
LEGAL LANGUAGE AND LEGAL WRITING 171

5. LIKE, WANT
(i) She likes (wants, coffee) (money, etc.)
(ii) She likes to go for walk. He wants to tell you something.
(iii) He likes (wants) you to see him.
It is wrong to say He likes that you should see him, He wants that you should pass. A
that clause after like and went is unidiomatic.

6. NEED
As an ordinary verb
(i) Anyone going abroad needs the passport and the visa.
(ii) This copy needs to be endorsed by a notary to become admissible in evidence.
(iii) She needs nothing but a husband.

Need as an auxiliary is chiefly used in negative and question:


(i) She need not return the baby girl to him until she attains the age of majority.
The opposite of this is: She must return the child to him.
(ii) Need she return the child?
(iii) Must She return the child?
The expected answer is: She must.
Need not is the negative of must where must is obligatory either due to order or due to
circumstances.

7. ORDER, EMPHASISE, STRESS, DESCRIBE, DISCUSS


These verbs are always transitive. Hence it is wrong to say He ordered for the arrest or The
teacher emphasised on these questions. On the other hand we can say, He issued the order
(orders) for their arrest. He laid stress (emphasis) on these questions. In these sentences the
noun order (orders) is followed by for, and the nouns stress, emphasis, take on after them. He
ordered a cup of coffee, The teacher stressed these questions are the forms needed when the
verbs order, stress are used.
We discussed the matter, We had a discussion about your affairs, The witness described the
incident in a homely style, His description of the incident is correct, show how discuss and
describe, and their noun forms are used. Describe about, description about are wrong. In
Parliament, there are discussions on a bill, a topic, a question.

8. HOLD, OCCUPY
Hold (i) He holds (has) large shares in irdany companies and has a lot of influence
overtheir shareholders.
(ii) Hold (keep) him in check; he rnay be dangerous.
(iii) An emergency meeting of the Cabinet was held (took place) for deciding the
issue.
(iv) The Prime Minister is holding (to convoke) an important press conference.
(v) Ranga and Billa were held (caught) in a military compartment.
172 LANGUAGE AND THE LAW

(vi) The judge held (found) him guilty of murder and sentenced him to life
imprisonment.
(vii) Your argument cannot hold good (cannot be accepted).
(viii) Pandit Jawaharlal Nehru was held high esteem (respected) even by his political
opponents.
(ix) Hold (stop) your tongue or I shall thrash you.
(x) The Supreme Court held (gave ruling) in the, Kesvanand Bharati case that
fundamental rights were unamendable.
(xi) Theirs is a Holding company.

Occupy (i) She occupied (had) the pride of place in that beauty contest.
(ii) They gate-crashed and occupied (took possession of) the seats reserved for the
V.I.P.s.
(iii) Finding all the rooms occupied (engaged), he moved to another hotel.
(iv) As he was occupied (busy), I decided to see him later.
LEGAL LANGUAGE AND LEGAL WRITING 173

VOICE
THE ACTIVE AND PASSIVE VOICE

Transitive verbs have a doer (subject) of the action they express (verb), and a sufferer (object), a
person or a thing that undergoes the action. Thus, in the sentence, He violated the law., violation
is the action (verb), he is its doer (subject) and law is the sufferer (object). Similarly, He (doer)
met (action) her (sufferer) at a get-together and They came from Mumbai. In the last example,
the action came has a doer in they but no sufferer inasmuch as nothing to which the coming was
done. Come is a transitive verb.
Usually, in sentences written in active voice the subject comes first, then the verb, and then the
object. However, sometimes the object comes first. He was seen at the station by his friends.
This means the same thing as the sentence His friends saw him at the station. But in the former
sentence his being seen is more important and not the persons who saw him. In other words the
action is primary, the subject is secondary. In the latter sentence the subject is important. Similarly
in The injured persons were taken to the hospital, what is more important is that the injured
persons were taken to the hospital. Who took them to the hospital is not so important. Such
sentences are in passive voice.

Some more examples of sentences in passive voice are:


1. The case will be taken up on Monday.
2. Our goods are being loaded into the truck.
3. The notice must have been served by now.
4. Our cases have been put on the cause list.
5. His election to the Parliament has been set aside.
6. Billa and Ranga were arrested at the Delhi Railway Station.

Thus, we can see that in sentences written in passive voice,


1. The object takes the place of subject.
2. The same tense of the to be is added before the past participle of the transitive verb.

One can easily see that changing sentences written in active voice to passive voice is almost
invariably easy, as both the subject and object are known. Conversely, to write a sentence in active
voice, both subject and object must be known. On the other hand, passive sentence may be written
without subject. Therefore, changing sentences which are written in passive voice without subject
is difficult.

Passive voice is, therefore, used


1. where the subject is known or can be guessed,
2. where the subject is everyone concerned,
3. where the subject is unknown,
4. where the subject is not to be revealed.
Therefore, in the following examples the passive voice is a regular feature of style:
1. The contract shall be deemed to have been revoked with or without notice if it is established
that either of the parties playing fraud or deception upon the other for obtaining the agreement.
174 LANGUAGE AND THE LAW

2. The prisoner, when questioned could not give a satisfactory account of his whereabouts on the
night of the theft. He was therefore handed back to the Police and ordered to be kept in custody
for two weeks more. The case was brought forward by the local inspector of Police. Two
weeks after he was remanded to judicial custody.

THE DOUBLE PASSIVE


The above examples shall be deemed to have been revoked and was ordered to be kept in
custody reveal the use of double passive: a passive verb followed by a passive infinitive. This
construction is possible only with a few verbs, not with every verb.
An amendment was sought to be introduced is wrong. The test is to put the sentence back into
the active voice. Someone sought to introduce an amendment. The subject is neither known, nor
can be guessed. Amendment the object of to introduce cannot become the subject of was sought.
Only the object of sought cane be the subject of was sought.
He was allowed to be released on bail. Here the double passive is correct because the active
form The Magistrate allowed him to be released on bail. is possible.

A. Write the following using the passive voice of the verbs in brackets in a suitable tense.
1. A meeting is going (to hold) in the town hall tomorrow.
2. It (to find) when the final account (to check) that a profit of Rs. 50,000 (to make).
3. By the time the show began all the tickets (to sell out).
4. It (to expect) that the enquiry (to complete) in a fortnight.
5. Ranga (to produce) be fore the Chief Metropolitan Magistrate, New Delhi, on 20th
September when, it (to say), a voluntary confessional statement (to make) by him.

B. Turn the verbs in italics into passive voice and rewrite the following.
1. The customer has returned the books because the firm did not quote the prices correctly
when he ordered them.
2. Mr. ajan would have accepted your invitation if you had included his wife in it.
3. The D.M. may issue an order under sec. 144 Cr.P.C.
4. Haris failure in the examination must have disappointed him.
5. The clerk is preparing a list of all the pending cases as his officer told him to do so.

Turn the following sentences into the active voice, supplying a suitable subject wherever the doer
is not specified.
1. It has been reported in the papers that hundreds of homes were destroyed by the recent flood.
2. Mr. Ram must have been given wrong directions as to how we could be got in touch with.
3. The proposed Bill providing for Special Courts has been approved by the Supreme Court.
4. Mr. X has been appointed as the new Chief Justice of India.
5. Many articles like weapons used in the crime and blood-stained clothes have been recovered
and produced as exhibits.
LEGAL LANGUAGE AND LEGAL WRITING 175

USE OF VOICE IN LEGAL WRITING


Experts on readability normally agree that language in which passive voice is predominant is
harder to read than language in which active voice is predominant. Therefore, active voice is
preferred to passive voice. Active voice also helps to avoid ambiguity by forcing the draftsman to
name the person, if identifiable, who has relevant duty, right, power or privilege.
But that does not mean that one should not use passive voice at all. If there is good reason for
using passive voice, there is nothing wrong if one uses it. Sometimes it is not feasible or desirable
to identify the person charged with a duty, the recipient of a right or discretionary authority, or the
person from whom a right or discretionary authority is withheld or withdrawn. In such a case
normally passive voice is preferred to active voice. For example,
1. The by-stander shall be treated as if he were consumer. (to create a duty in an unnamed
person).
2. The applicant may not be required to pay the fee. (to negate authority in an unnamed person).
3. A mobile home shall not be moved on a public highway, unless ... (to create a duty not to act
in the unnamed person).
176 LANGUAGE AND THE LAW

COMMON LEGAL TERMS


1. ab initio - (Lat) - from the beginning.
2. ad idem - (Lat) - with a common understanding.
3. ad infinitum - (Lat) - without limit.
4. ad valorem - (Lat) - according to value.
5. actus reus - (Lat) - result of ones act.
The words actus reus denote a deed, i.e., a physical result of ones conduct, which the law seeks to
prohibit. Such act should be a voluntary act, i.e., an event subject to the control of the will. Where
A stabs B with a knife, depending upon the nature of the wound, B may sustain simple hurt,
grievous hurt or B may die, and depending upon that, the actus reus will be simple hurt, grievous
hurt or death brought about by As conduct.
Acts which are sought to be prohibited by law by imposing punishment are called crimes or
offences.
See infra (Maxim 2) actus non facit reum nisi mens sit rea.
6. alibi - (Lat) - elsewhere.
This is the name given to the special defence sometimes put forward by the accuses in a criminal
prosecution, to the effect, that at the time of the offence alleged to have been committed by him,
he was at a different place from that specified in the indictment as the scene of the offence. An
alibi is the best defence which can be stated in such cases, if it can be clearly proved, but it is
always regeded with great suspicion, and is very rarely successful.
7. allegatio falsi - (Lat) - the statement of what is untrue.
see: expressio falsi; suppressio veri.
8. amicus curiea - (Lat) - the friend of the Court.
The name given to any bystander, who, without having any interest in the cause, of his own
knowledge makes a suggestion on a point of fact or law, for the information of the Court, or to
correct a mistake.
9. animo remenandi - (Lat) - with an intention of remaining.
Said of a person leaving a country without meaning to return; or of a person resident in a foreign
country with the intention of remaining there and not returning to settle in his native country. This
is one of the two necessary requirements for getting domicile of a place, the other being the factum
of residence.
10. bona fides - (Lat) - good faith.
See also: mala fide.
11. bona gratia - (Lat) - out of goodwill, voluntarily.
12. bona vacantia - (Lat) - the goods of a person dying without successor.
Such goods will escheat to the government as ultimus hres.
13. bonorum possessor - (Lat) - possessor of goods.
14. capex doli - (Lat) - capable of wrong-doing; able to commit a crime or fraud.
see: doli incapex.
LEGAL LANGUAGE AND LEGAL WRITING 177

15. causa causans - (Lat) - the immediate cause.


The cause which directly produces the effect is distinguished from the causa caus causantis - a
proximate but not immediate cause.
16. certiorari - (Lat) - A writ by which the superior Court (High Court or Supreme Court)
examines the legality of the order of an inferior Court and in case of illegality quashes the
impugned order. The difference between an appeal and the writ of certiorari lies in the fact that in
appeal the superior Court corrects the error of the inferior Court, while in case of certiorari it does
not.
17. corpus delicti - (Lat) - the substance or body of the offence or crime charged, with the various
circumstances attending its commission, as specified in the charge sheet.
18. culpa - (Lat) - fault, negligence.
19. cum testamento annexo - (Lat) - with will annexed.
In case of testamentary succession, the estate of the deceased will be administered by the executor
appointed by the testator through the will. If such executor is not appointed, or if the executor
appointed by the testator dies, or refuses to act, or becomes incapable of acting (due to illness,
residence, insanity or insolvency, etc.), some other person will have to be appointed in his place.
As executor can be appointed only by the testator, no other person including Court can appoint an
executor to replace him. The Court can, however, appoint an administrator through letter of
administration. But, issuing letter of administration indicates intestacy. Therefore, in such cases,
Court issues letter of administration with will annexed to show that there is no intestacy though
letter of administration are issued. This is called issuing of letter of administration cum testamento
annexo.
20. damnum - (Lat) - harm, injury, loss.
Under the Roman law damnum implied only accidental damage, or damage not the result of a
legal wrong.
21. damnum absque injuria - (Lat) - a loss without a legal wrong; loss or hurt without an injury in
law, i.e., without such injury as would give rise to action for damages against the offending party.
22. damnum injuria datum - (Lat) - damage or injury culpably inflicted.
23. de die in diem - (Lat) - from day to day, daily.
24. de facto - (Lat) - according to the fact, on the point of fact.
See also: de jure.
25. de jure - (Lat) - according to law, on the point of law.
See also: de facto.
26. de novo - (Lat) - of new, afresh.
27. del credere - (Lat) - an italian mercantile phrase similar in import to the English word
guarentee.
It is understood to express the obligation undertaken by an agent, who not only sells his principals
goods, but who also guarantees the solvency of the buyer. On account of this guarantee he receives
a higher remuneration or percentage on his transaction, which is called a del credere commission.
28. delegatio - (Lat) - delegation.
29. doli incapex - (Lat) - incapable of committing crime or fraud.
178 LANGUAGE AND THE LAW

A child below the age of 7 years is presumed to be doli incapex. This is a conclusive presumption
and cannot be rebutted by producing evidence.
See also: capex doli.
30. dolus - (Lat) - fraud.
In the civil law it is defined as every trick, falsehood, or device employed for the purpose of
circumventing, cheating, or deceiving another. This is a definition of dolus in its most
comprehensive sense, generally termed in the civil law dolus malus. Any contract or agreement
brought about by such means cannot be maintained (Ex dolo malo non oritur actio or Dolo malo
pactum se non servaturum).
31. dominium - (Lat) - The name given in civil law to the right of absolute ownership.
32. dominium eminens - (Lat) - eminent domain.
The supreme power over property vested in the people, in virtue of which they can, for the
purposes of the public necessity or utility, compel any proprietor to part with his lands.
33. donatio mortis causa - (Lat) - a gift made in contemplation of death, and upon condition that it
is to take effect only in the case of death of the donor.
The condition need not be expressed. The Court infers if the gift is made in contemplation of
death, and there is nothing to show a contrary intention. If the donor recovers, the gift is revoked.
Therefore, an absolute and irrevocable gift cannot be donatio mortis causa. Where a man lies in
extremity, or being surprised with sickness, and not having an opportunity of making his will, but,
lest he should die before he could make it, he gives with his own hands his goods to his friends
about him; this, if he dies, shall operate as a legacy, but, if he recovers, then does the property
thereof revert to him.
Under Mahomedan law there is a similar concept of gift during marz-ul-maut.
34. ejusdem generis - (Lat) - of the same kind or species.
A well known maxim of construction. the phrase ejusdem generis means of the same kind and is
more restricted than the word analogous.
This is a rule observed in the interpretation of statutes, where a general rule will be controlled and
restricted in its application by a special enumeration of cases to which it is intended to apply.
Thus, where an Act, relative to the desertion of servants, applies to any servant in husbandry, or
any artificer, calico printer, handicraftsman, miner, collier, keel man, pitman, glass man, potter,
labouer, and other person. The ordinary interpretation of the last words of this clause would
include every servant, the legal interpretation limits it, in respect of the preceding enumeration, to
other persons of the same description as those specified. Accordingly, it has been held that this
Act does not apply to domestic servants.
35. eo nomine - (Lat) - under that name; under that character.
A trustee, suing for a debt due to the trust, must sue eo nomine, as under any other character the
debtor owes him nothing, and cannot be compelled to fulfill his obligation.
36. ex facie - (Lat) - on the face of it, evidently.
This is said of what appears from the face of a writing. For example, a deed may be invalid or null
and void on many grounds, such as fraud, that the person granting it was not in sound mind, etc.
But these grounds do not appear from a mere perusal of the deed, whereas, a deed which is erased
in essentialibus, without any mention of the erasure in the testing clause, is ex facie null and void,
the essential defect appearing from the face of the deed itself without any enquiry whatever.
LEGAL LANGUAGE AND LEGAL WRITING 179

37. ex officio - (Lat) - officially, by virtue of the office.


38. ex parte - (Lat) - of the one part; from one party; one sided.
This term is applied in law to a proceeding by one party in the absence of, and without notice to,
the other.
39. ex post facto - (Lat) - by matter happening afterwards; from a later act or event; after the fact.
It is a term used in the law, signifying something done after, or arising from, or to affect, another
thing that was committed before.
ex post facto law - an act or statute changing the law as to previous events or contracts.
40. expressio falsi - (Lat) - a false statement.
The fraud or misrepresentation, on the ground of which a contract can be rescinded. It is the
making of a false statement, knowing it to be untrue.
see: allegatio falsi; suppressio veri.
41. extra commercium - (Lat) - beyond commerce.
This is said of things which cannot be bought or sold, such as public roads, rivers, titles of honour,
etc.
42. felo de se - (Lat) - self murderer.
A man of the age of discretion, and compos mentis, who voluntarily kills himself, by stabbing,
poison or any other way.
43. feme covert - (French) - (also: femme couverte) - a woman protected, i.e., a married woman.
44. feme sole - (French) - a spinster.
45. fer natur - (Lat) - of a wild nature.
A term applied to animals not commonly tamed.
46. forum actoris - (Lat) - the forum of plaintiffs or defendants domicile.
47. forum actus - (Lat) - the forum of the place where the thing was done.
48. forum contractus - (Lat) - the forum of the contract; the Court of place where a contract was
made.
49. forum domesticum - (Lat) - a domestic forum or tribunal.
50. forum domicilii - (Lat) - the forum or Court of domicile.
51. forum rei - (Lat) - the forum of property is.
52. fructus - (Lat) - fruit; produce.
53. genus - (Lat) - general class or division, comprising several species; a mans lineage, or direct
descendants.
54. habeas corpus - (Lat) - produce the body.
Writ requiring body of person to be brought before judge or into the court. The writ is filed for the
purpose of challenging the detention of the person as illegal detention.
55. hredes - (Lat) - heirs.
[also written as: hres, heredes, heres].
180 LANGUAGE AND THE LAW

56. homicide - (Lat) - killing of a human being.


57. id est - (Lat) - (abbr. i.e.) - that is.
58. ignorantia facti - (Lat) - ignorance of a fact.
59. igmorantia juris - (Lat) - ignorance of the law.
60. in camera - (Lat) - in chambers; in private; in the judges private room; not in open court.
Normally Court proceedings are conducted in open Court, where the public have free access to
observe the proceedings. This is done with an intention to deliver justice publicly, and not
secretly. However, in some cases where the things are confidential, the proceedings are held in
camera, where only the parties and their counsel have access. This is done for reasons of security,
or secrecy, or to avoid embarrassment to the parties.
61. in forma pauperis - (Lat) - as a pauper, i.e., relieved of the payment of court fees, as a poor
man is unable to pay court fees.
A suitor who from poverty is unable to avail himself of the ordinary forms of the Court, has from
a very early period in the history of law, been entitled, upon satisfying the court of his want of
means, to obtain an order for leave to sue in forma pauperis. Such order conferred on the pauper
immunity from payment of the ordinary fees of the court.
62. in limine - (Lat) - at the threshold.
63. in omnibus - (Lat) - in all things.
64. in pais - (Lat) - out of the Court.
65. in personam - (Lat) - against the person.
Proceedings in personam are proceedings which seek the recovery of a personal judgment.
An action in personam is distinct from a personal action, both in the sense in which that term is
used in the maxim, actio personalis moritur cum persona, and in its sense at common law,
which was an action to recover personal property or to enforce a contract or to recover damages
for a tort.
66. in re - (Lat) - in the matter; in the transaction.
This phrase is much used in certain legal proceedings, particularly in Chancery and bankruptcy
matters which are not begun by action in the ordinary way, to indicate the particular estate or
matter which is the subject of litigation.
67. in re aliena - (Lat) - in anothers affair or property.
68. in re propria - (Lat) - in ones own business; in a subject belonging to oneself.
69. in rem - (Lat) - against the King; against the property, not against the person.
This term is derived from the Roman law, but is not used in English law in precisely the same
sense as in that law. Indeed, Bracton, limits proceedings in rem to actions to obtain possession of
res by which he understood real actions.
A proceeding in rem is a proceeding instituted against a thing, and not against a person.
A proceeding in rem, in a strict sense, is one taken directly against property, and has for its object
the disposition of the property, without reference to the title of the individual claimants but in a
larger and more general sense the term proceeding in rem is applied to actions between parties
where the direct object is to reach and dispose of the property owned by them, or of some interest
therein.
LEGAL LANGUAGE AND LEGAL WRITING 181

A judgment in rem is generally said to be a judgment declaratory of the status of some subject
matter, whether this be a person, or a thing. Thus the probate of a will fixes the status of the
document as a will; so a decree establishing or dissolving a marriage is a judgment in rem, but it
fixes the status of a person. A judgment or forfeiture against specified articles of goods for
violation of the revenue laws is a judgment in rem. In such case the judgment is conclusive against
all the world, and, if the expression strictly in rem may be applied to any class of cases, it should
be confined to such as these. Marshall, CJ, says, I have always understood that where a process is
to be served on the thing itself, and where the mere possession of the thing itself, by the service of
a process and making proclamation, authorises the Court to decide upon it without notice to any
individual whatever, it is a proceeding in rem, to which all the world are parties. ... The claimant if
a party, whether he speaks or is silent, whether he asserts his claim or abandons it. But usage has
distinguished as proceedings in rem a class of cases in which, while the seizure of the thing will be
in aid of jurisdiction, yet it is essential that some form of notice be given to particular person or
persons. The proceeding thus assumes a phase of actions in personam, and a judgment will not be
binding upon any one who was not before the Court.
70. in status quo - (Lat) - in the same state; without change.
in status quo means being placed in the same position in which the party was at the time of the
inception of a contract which is sought to be rescinded.
71. in toto - (Lat) - altogether; wholly; entirely.
72. in ventre sa mere - (Lat) - in the mothers womb.
A child in ventre sa mere is to be considered as born. Thus where under Transfer of Property Act,
a gift to an unborn person is invalid, a gift to a child in womb is not. So also, under law of torts, a
child in womb is entitled to recover damages for the harm or loss caused to it.
Also written as en ventre sa mere.
73. incognito - (Lat) - a sovereign travelling incognito though he enjoys as sovereign the right of
exterritoriality is entitled to be treated as a private person if he so wishes. But when he chooses to
put an end to such incognito, he is entitled to all the prerogatives of a sovereign.
74. infra - (Lat) - below.
75. injuria - (Lat) - injury or damage wrongfully inflicted; any wrongful act; a tortuous act.
It need not be wilful and malicious, for, though it be accidental, if it be tortuous, an action will lie.
76. injuria sine damno - (Lat) - injury without a damage.
77. innuendo - (Lat) - allusive; deprecatory remark or hint.
An innuendo is a statement by the plaintiff in an action for defamation, of the construction of
which he puts upon the words himself, and which he will endeavour the jury to adopt at the trial.
78. inter alia - (Lat) - among other things.
79. inter vivos - (Lat) - between living persons.
An ordinary deed importing obligation or conveying property is called a deed inter vivos, as
distinguished from a will bequeathing movables, or a deed conveying heritage, to take effect only
on the granters death, which is called mortis causa.
see also mortis causa.
80. interim - (Lat) - meanwhile; in the meantime (e.g., interim order).
182 LANGUAGE AND THE LAW

81. interlocutory - (Lat) - in law it means not that which decides the cause, but that which only
settles some intervening matter relating to the cause.
82. intra vires - (Lat) - within the powers or authority.
83. ipse - (Lat) - he himself; himself.
84. ipse dixit - (Lat) - he said it himself, i.e., there is no other authority for it.
85. ipso facto - (Lat) - by the fact itself; by the very act itself; by the mere fact; automatically.
The expression is used where any forfeiture or invalidity is incurred; and the meaning of it is, that
it shall not be necessary to declare such forfeiture or invalidity in a Court of law, but that, by the
very doing of the act prohibited, the penalty shall be thereby instantly and completely incurred.
86. ipso jure - (Lat) - by the law itself; by the mere operation of law.
87. judgment in personam or judgment inter partes - (Lat) - A judgement, in form as well in
substance, between the parties claiming the right, and that is so inter partes appears by record
itself; one which operates only upon those who have been duly made parties and their privies,
being against the person merely, and not settling the status of any person or thing.
88. judgment in rem - (Lat) - one pronounced upon the status of some particular person or thing
and which binds all persons.
89. jura in personam - (Lat) - rights primarily available against specific persons.
90. jura in rem - (Lat) - rights which are available against the world at large.
91. jura publica - (Lat) - public rights.
92. jura rerum - (Lat) - rights of things.
93. jure gentium - (Lat) - by the law of nations.
94. jure nature - (Lat) - by or according to the law of nature.
95. juris consult - (Lat) - (Roman Law) - one who is consulted on the law; a Roman lawyer who
gave opinion on cases put to him.
96. jus civile - (Lat) - the civil law; all the Roman Law except the jus honorarium.
97. jus commune - (Lat) - the common law; common right.
98. jus dicere - (Lat) - to pronounce judgment, to give the legal decision.
99. jus eminens - (Lat) - eminent domain; in the civil law, the supreme power of the state over its
members and whatever belongs to them.
100. jus gentium - the Law of Nations; International Law.
The law by which kingdoms and societies in general are governed.
It is a term of Roman law, and is translated as the Law of Nations or Droit de gens. The jus
gentium, opposed to jus civile, means the institutions of Roman law, admitted by all civilised
peoples of antiquity. The jus gentium was not international law, nor was it, so to speak,
philosophical or ideal law, which is a product of ethical reasoning though the two notions were
often confounded; for the rules of law in question were founded on reasons, and were therefore,
jus naturale or jus natur.
101. jus in personam - (Lat) - a right against a person: a right which gives its possessor a power to
oblige another person to give or procure, to do or not to do, something.
LEGAL LANGUAGE AND LEGAL WRITING 183

102. jus in re - (Lat) - a right in a thing; a real right.


A complete, as distinguished from an imperfect right; a right, or property in a thing, valid as
against all mankind.
103. jus tertii - (Lat) - the right or interest of a third person.
When a person is sued in respect of certain property he may sometimes set up as a defence that the
title to such property is not in the plaintiff but in some third person.
In an action for ejectment, the plaintiff is entitled to succeed solely on the strength of his prior
possession and the defendant is not entitled to set up the right of a third party unless he claims
under him and makes god that claim.
104. lex - (Lat) - law; a law; the law.
105. lex communis - (Lat) - the common law.
106. lex domicilii - (Lat) - the law of the domicile.
Personal contracts or deeds relating to movable property are interpreted and enforced according to
the law of the place where the contracting parties, or the grantor of the deed, had their domicile at
the time of contracting or granting, and that without regard to the place where the contract is to be
executed, or where the movables are situated. Thus a conveyance of a movable situated in
Scotland, granted by a domiciled Englishman, will be construed and given effect to according to
the law of England. Similarly, a contract entered into between Scotchmen domiciled in Scotland,
for the performance of certain works in England, will be enforced according to the laws of
Scotland.
While it the general rule that the law of any country will acknowledge and enforce contracts
lawfully entered into in some other country, yet the rule admits of exception in cases where the
contract is at variance with the morals or public policy of that country in which it is sought to be
enforced. Thus in some countries where polygamy is permitted, and the several contracts of
marriage entered into by the husband are recognised. Such contracts are not recognised in the
countries where polygamy is forbidden, nor would the rights of any but the first wife would be
enforced against the husband, since the law acknowledges none other than the first married to be
the wife at all.
Again, contracts concerning and deeds conveying heritable property must be in accordance with
the law of the country where the heritage is situated, because it would be contrary to good policy
to admit of the administration of a law different from that held and administered where the
property is situated.
The lex domicilii rules with respect to the person and personal rights, but immovable and heritable
rights are regulated by the lex rei sit.
107. lex fori - (Lat) - the law of the forum of the court.
See: lex loci contractus.
108. lex loci - (Lat) - the law of the place.
See: lex loci contractus.
109. lex loci contractus - (Lat) - the law of the place where the contract is made.
Where contracts are entered into in one country and their performance and fulfilment are to be
made in another, questions frequently arise as to the rules by which those contracts re to be
construed and performance enforced. There is a diversity of opinions in this regard. Some
authorities maintain that the law of the place where the contract is to be performed (lex loci
184 LANGUAGE AND THE LAW

solutionis) governs the construction of the contract, while others are of the opinion that the law of
the place where the contract is made does so. It may, however, be stated generally, that while the
lex loci solutionis is always of importance in such a question, the construction and interpretation
of a foreign contract depends upon the law of the place where the contract is entered into.
While, however, construction of a contract is determined by the lex loci contractus, the mode of
procedure for its enforcement must be regulated by the law of the country to whose courts the
application has been made to compel fulfilment (lex fori). The lex loci thus determines the
meaning, intent, and measure of obligation, the lex fori the mode of procedure by which fulfilment
of that obligation is to be enforced.
The phrase lex loci contractus is used, in a double sense, to mean sometimes the law of the place
where a contract is entered into; sometimes that of the place of its performance.
110. lex loci domicilii - (Lat) - the law of the place of domicile.
see: lex domicilii.
111. lex loci rei sitae - (Lat) - the law of the place where a thing is situated.
Movable rights are regulated and determined by the law of the domicile; but immovable or real
rights are determined by the law of the place where the subject or the property is situated. Thus a
contract entered into in England will be enforced in India according to the laws of England. But a
deed in respect of an immovable property situated in India, wherever executed, must, to be
effectual, be framed according to the requirements of the laws of India.
112. lex loci solutionis - (Lat) - the law of the place where the contract is to be performed; the
law of the place where the money is to be paid or obligation is to be discharged.
see lex loci contractus.
113. lex mercatoria - (Lat) - law merchant.
Law merchant is a body of legal principles founded on the customs of merchants in their dealings
with each other, and though at first distinct from the common law, afterwards became incorporated
into it. Though part of the general law of England, it is distinguished by a separate name, because
it applies to particular subjects, and is based on principles were ingrafted into the municipal law by
gradual adoption from the lex mercatoria, or general body of European usages, in matters relating
to commerce.
114. lis pendens - (Lat) - a pending process or suit, an action in the course of being litigated,
liticontestation.
This phrase is sometimes used technically to express a preliminary objection to the suit in which it
is advanced. In India, however, such a defence is in the form of res subjudice.
Under the Transfer of Property Act, where a property is under litigation, it cannot be transferred. If
at all it is transferred, the purchaser will take it subject to the decision of the suit.
115. loco parentis - (Lat) - in the place of a parent.
Guardian of a child, testamentary or certificated, stand in loco parentis to the ward. They have the
control of the wards person as well as the administration of their estate.
The proper definition of a person in loco parentis to a child, is a person who means to put
himself in the situation of a lawful father to the child, with reference to the office and duty of
making provision for the child; or, as defined by Sir William Grant, M.R., it is a person assuming
the parental character and discharging parental duties.
LEGAL LANGUAGE AND LEGAL WRITING 185

Similarly, in English law, a tutor appointed to the child, by the will or testament of the childs
father, stand in loco parentis to the child. The office of the tutor falls on the child attaining
majority when he acquires persona standi which he could not previously have, and is entitled to
perform certain acts for himself, which until then could be performed only by his tutor on his
behalf.
117. locus standi - (Lat) - a place of standing, a right of appearance in a Court of justice.
118. mala fides - (Lat) - bad faith.
Opposed to bona fides.
119. mala in se - (Lat) - (sing. malum in se) - acts bad or wrong in themselves.
Acts are said to be mala in se which are contrary to the law of nature or rules of morality; such, for
example, are murder, theft, robbery, and other crimes.
see mala prohibita.
120. mala prohibita - (Lat) - (sing. malum prohibitum) - acts forbidden by law but not otherwise
wrong.
Such acts are distinguished from the mala in se in this respect, that these being opposed to
morality and law, are wrong in themselves, while mala prohibita are not criminal in themselves,
but become illegal by virtue of their prohibition. Thus driving on right side of the road cannot be
regarded at any time as in itself an illegal act, but by virtue of statutory enactment it is rendered
illegal.
121. mens rea - (Lat) - a guilty mind.
Mens rea is a technical term generally taken to mean some blameworthy mental condition. In law
of crimes, it has three forms, viz.,
1. intention,
2. rashness, or
3. negligence.
Where a person knows the consequences of his act and desires the consequences to happen is said
to intend those consequences. Thus, if a person does an act with the foresight and desire of the
consequences, he does that act intentionally.
Where a person knows the consequences of his act but does not desire them to happen, he is said
to be rash. Thus, a driver of a vehicle drives a car at high speed, knowing that it may cause
accident, he is said to be rash, because he does not desire that accident should take place.
Where a person fails to take sufficient care to avoid the consequences of an act, he is said to have
acted negligently. Thus where a person throws something out of the window without looking to
see i it may hit somebody, he is guilty of negligence.
See infra (Maxim 2) actus non facit reum nisi mens sit rea.
122. mortis causa - (Lat) - in contemplation of death.
Deeds made in contemplation of death are so called, because the prospect of death is the cause
which induces their execution. Wills disposing of movables, and disposition of heritage, to take
effect only after the granters death are called mortis causa deeds, in opposition to deeds taking
effect during the life of the parties, which are termed inter vivos.
186 LANGUAGE AND THE LAW

As mortis causa deeds are of no avail until the death of the granter, they may be recalled or altered
by him at any time during his lifetime, and that even where they contain a renunciation of his right
to revoke.
see also inter vivos.
123. mutatis mutandis - (Lat) - things being changed which are to be changed.
This phrase, and the use of it, may best be explained by an example. A proprietor of an estate feus
his lands, and the feu contracts all contain the same general clauses, the same obligations on
feuers, confer the same rights. In such a case, two of the feu charters are said to be the same
mutatis mutandis, that is, they are the same, if (or when) the name of the disponee, the particular
disposition of the land feued, and other such - like particulars which are peculiar to each, be
changed.
124. nexus - (Lat) - a bond, tie or fetter.
An arrestment is said to impose a nexus upon the subjects arrested, because it imposes a legal
restraint on the arrestee from parting with the custody of them. One will find this word frequently
used in the civil law to signify a man free born, but who had been reduced to slavery on account of
debts which he could not pay.
Nexus realis is any bond or fetter attaching to real or heritable property, and which restricts the
owners exercise of the absolute rights of property. An inhibition is a nexus realis, placing a
restriction, as it does, on the owners right of disposing of his property. So also is an adjudication.
125. nisi - (Lat) - The word nisi is often affixed, as a kind of elliptical expression, to the words,
rule, order, decree, judgment, or confirmation, to indicate that the adjudication spoken of is one
which is to stand as valid and operative unless the party affected by it shall appear and show cause
against it, or take some other appropriate step to avoid it or procure its revocation. A decree nisi is
one that is conditional and requires something more to make it absolute.
126. non compos mentis - (Lat) - one not of sound mind, memory and understanding; insane.
Non compos mentis is a generic term, and includes all species of madness, whether it arises on
idiocy, sickness, lunacy or drukenness.
127. non obstante - (Lat) - notwithstanding, not opposing.
128. non sequitur - (Lat) - literally, it does not follow.
129. novatio - (Lat) - novation.
A mode of extinguishing an obligation already existing by the substitution of a new engagement or
obligation by the same debtor to the same creditor in its place. Thus, when a bill is given for the
amount of an open account, and the account is in consequence discharged, novation takes place,
the obligation being thereafter for the payment of the bill, and not the account. Another form of
novation is when a new debtor is substituted for the old one, with the consent of the creditor. This
is generally termed delegation (delegatio).
130. novus actus intervenius - (Lat) - a new act intervening.
131. nudum pactum - (Lat) - literally, a nude pact.
A promise that cannot be enforced, either at law or in equity; an executory contract without a
consideration, or a naked promise; a voluntary promise, without any other consideration than mere
good-will or natural affection.
132. nullius filius - (Lat) - literally, the son of nobody; a bastard.
LEGAL LANGUAGE AND LEGAL WRITING 187

133. obiter dictum - (Lat) - (pl. obiter dicta) - an expression of opinion by a judge on a question
immaterial to the decision of the court.
In the course of pronouncing their decision in a case before them, judges sometimes give opinions
incidentally on points which may have been raised, but, not being essential to the case, have not
been fully discussed or weighed. Such opinions are called obiter dicta. They are not considered as
authoritative, nor would they be received as such by the Court, if the question on which they had
been expressed came up at a subsequent period of judgment. They are only of importance
commensurate with the reputation of the judge delivering them.
see also ratio decidendi.
134. onus probandi - (Lat) - the burden of proving.
The general rule is that the party making an allegation must prove it. Thus the burden of proving a
claim which is denied lies on the pursuer who advances or maintains it, and on his failure to do so,
the defendant is assoilized. The burden of proving, however, sometimes falls on the defender, as,
for example, where he admits that he owed the sum sued for, but alleges that it has been paid, in
which case, the proof of such payment is incumbent upon him. This rule does not apply where
there is a legal presumption in favour of the allegation made. Thus, in the payment of a debt made
to a minor himself and not to his guardian, action is competent against the debtor for repayment,
on the ground that the payment made was to the lesion of the minor. In the ordinary case the minor
would be bound to prove the lesion averred, but as the law presumes all such payments to be in
lesion, the rule does not apply, and therefore it falls upon the debtor to show that there was no
lesion, but that the payment was in rem versum of the minor. In some cases very little proof
suffices to shift the onus from one party to the other.
135. parafernalia - (Lat) - (English Law) - The name given to those movables which were
properly personal to a wife, and remained her own property, notwithstanding of her marriage, even
when (as the law formerly stood) the marriage operated as an assignation of the wifes whole
movable estate to her husband. The term includes a wifes wearing apparel, jewels, all ornaments
proper to her person, etc. which were hers before the marriage and gifts of a similar character from
her husband made before or on the marriage-day: it also includes the cabinets or wardrobe in
which such effects were kept. No part of a wifes estate now passes to her husband by virtue of the
marriage.
136. pari delicto - (Lat) - in a similar offence or crime; equal in guilt or in legal fault.
137. pari materia - (Lat) - similar in material; similar in substance.
Statutes are in pari materia which relate to the same person or thing, or to the same class of
persons or things.
The phrase statutes in pari materia is applicable to private statutes or general laws made at
different times, but in reference to the same subject. Thus the English laws concerning paupers
and their Bankruptcy Act are construed together as if they were one statute, and as forming a unit
system.
Statutes that are in pari materia are to be construed as though they had originally constituted one
enactment.
138. pari passu - (Lat) - equally; with equal grade; with equal step; with simultaneous
progress.
When creditors claiming a common fund and competing as to their rights of preference, as in an
action of multiplepoinding, are preferred to the fund equally, or share and share alike, they are said
to be preferred pari passu. Where one of the claimants is preferred to the fund to the extent of his
claim before all the other claimant, he is said to be preferred in primo loco.
188 LANGUAGE AND THE LAW

139. pendente lite - (Lat) - during the pendency of a suit.


In England, formerly, if one of the parties to a suit assaulted his opponent during the pendency of
a suit, or was accessory to such assault, he was punished by the loss of his cause. These laws are
now repealed, and such assault is now punished in the same way as in case of any other assault. It
has no effect on the decision of the suit.
In India, under Transfer of Property Act, transfer of a property under litigation is prohibited. The
transferee of such a property with the notice of the litigation will take it subject to the decision of
the Court in that case.
140. penology - study of punishment and prison discipline
141. per capita - (Lat) - per heads.
A distribution per capita is when a number of individuals, e.g., a class, even though in different
degrees of relationship, take the fund distributable among them in equal shares - cf. per stirpes.
Where a testator provides that his estate is to be distributed among the beneficiaries per capita, it is
divided into as many shares as there are persons called to the succession. In such a succession each
individual succeeds in his own right, and the right of representation is excluded.
see per stirpes.
142. per curiam - (Lat) - the opinion of the court in a case in which the judges are all of one mind,
and the question involved is so clear that it is not considered necessary to elaborate it by an
extended discussion.
143. per incuriam - (Lat) - through negligence, mistake, or error.
144. per se - (Lat) - by himself, or itself.
145. per stirpes - (Lat) - per stock.
Distribution of property per stirpes means that all the beneficiaries will not, necessarily or
probably, take equal shares but, that the property is to be divided in to as many parts as there are
stocks and each stock will have one and only one of such parts though such stock may consist of
many persons whilst another may only consist of one person - cf. per capita.
146. periphrases - (Lat) - circumlocution; use of many words to express the sense of one.
147. perjury - the wilful giving under oath in a judicial proceeding or in a court of justice of false
testimony material to the issue or point of inquiry.
148. persona - (Lat) - a person.
149. persona designata - (Lat) - a person is indicated in a statute or legal instrument not by name,
but either by official designation or as one of a class.
150. pro forma - (Lat) - as a matter of form; a proceeding purely formal.
151. pro rata - (Lat) - according to a measure which fixes proportions; according to a certain part;
in proportion; according to the rate.
152. pseudo - (Lat) - sham.
153. puisne - (Fr) - junior or inferior in rank.
Several judges and barons of the Former Common Law Courts at Westminster, other than the
chiefs, were called puisne.
154. qua - (Lat) - considered as; in so far as; in the character or capacity of.
LEGAL LANGUAGE AND LEGAL WRITING 189

e.g., a trustee qua trustee.


155. quantum - (Lat) - the extent; how much.
156. quantum meruit - (Lat) - so much as is deserved or merited.
Reasonable amount is to be paid for services rendered or work done, when the price therefor is not
fixed by contract.
157. quantum valebat - (Lat) - for so much as it was worth; whatever value it may have.
Where goods and wares sold are delivered by a tradesman at no certain price, or to be paid for
them as much as they are worth in general, the quantum valebat lies, and the plaintiff is to aver
them to be worth so much.
also written as quantum valeat.
158. quasi - (Lat) - as if; as it ware; analogous to; seemingly but not really.
This term is used in legal phraseology to indicate that one subject resembles another, with which it
is compared, in certain characteristics, but that there are also intrinsic differences between them.
159. quid pro quo - (Lat) - the giving of one thing of value for another thing of value. Something
for something; thing given as compensation or consideration.
160. ratio decidendi - (Lat) (pl. rationes decidendi) - reason or occasion of a law.
161. reddendo - (Lat) -
162. reddendo singula singulis - (Lat) -
163. referendo singula singulis - (Lat) - referring separate words to separate subjects; making a
distributive reference of words in an instrument; construing distributively.
164. res - (Lat) - (Civil Law) - a term said to signify an a thing or an object.
165. res aliena - (Lat) - the property or subject belonging to another.
166. res communes - (Lat) - common things; things common to all by the law of nature.
167. res gest - (Lat) - (sing. res gesta) - the things done; the whole transaction or circumstance.
Or literally speaking, the facts of the transaction; the facts of a transaction explanatory of an act or
showing a motive for acting; matters incidental to a main fact and explanatory of it, including the
acts and words which are so closely connected with a main fact as will constitute a part of it, and
without a knowledge of which the main fact might not be properly understood; events speaking for
themselves through the instinctive words and acts of participants, not the words and acts of
participants when narrating the events; the circumstances, facts and declarations which grow out
of the main fact, or are contemporaneous with it and serve to illustrate its character; those
circumstances which are the automatic and undesigned incidents of a particular litigated act, and
are admissible when illustrative of such act.
The test of whether or not declarations are res gestae is, were they the facts talking through the
party or the partys talk about the facts? Instinctiveness is the requisite, and when this exists the
declarations are admissible.
168. Res ipsa loquitur - (Lat) - The thing speaks for itself; the affair speaks for itself.
A general way of saying that the circumstances attendant upon an accident are of themselves of
such a character as to justify a jury in inferring negligence as the cause of that accident.
190 LANGUAGE AND THE LAW

Res ipsa loquitur imports that the plaintiff has made out a prima facie case without any direct
proof of actionable negligence.
169. res judicata or res adjudicata - (Lat) - matter adjudged; a thing judicially acted on or
decided.
Res adjudicata means that if an action be bought, and the merits of the question be discussed
between the parties, and a final judgment be obtained by either party, the parties are concluded,
and cannot agitate the same question in another action. In is founded upon two maxims of law, one
of which is that a man should not be vexed for the same cause, and the other that it is for the
public good that there be an end of litigation.
The principle is that the decision of a Court of competent jurisdiction upon a point which is or
should have been construed as necessarily involved is final and conclusive. Matters once decided
by a Court of competent jurisdiction can never be questioned. It matters not under what form the
question be presented. Whenever the same question recurs between the same parties, the plea of
res adjudicata estops.
170. res nullius - (Lat) - things belonging to no one; the property of nobody.
171. respondeat - (Lat) - let him answer.
172. Respondeat ouster - (Lat) - let him answer further; the judgment for the plaintiff on a plea of
abatement.
173. Respondeat superior - (Lat) - Let the principal answer.
A general rule which charges the master with liability for the servants negligence in the masters
business causing injury to third persons; founded on this principle, that he who expects to derive
advantage from an act which is done by another for him must answer for any injury which third
person may sustain from it.
also written as respondez superior.
174. san mentis - (Lat) - of sound mind.
175. sine die - (Lat) - without date (indefinitely postponed).
176. sine qua non - (Lat) - a condition precedent.
177. solatium - (Lat) - compensation; indemnification.
This word indicates the compensation given by the law for the injury done to the feelings of any
one; while damages generally signifies the compensation awarded for pecuniary loss sustained, or
bodily injury inflicted. Thus where a man has been killed through the fault or negligence of
another, the widow and the children of the deceased are entitled, not only to the damages on
account of his death, and consequent removal of pecuniary support he afforded, but also to
solatium on account of their wounded feelings. Solatium was given even where the death of the
sufferer, instead of being a loss to his family, might be regarded as a benefit, on account of his
bankruptcy and dissipated habits.
178. spes successionis - (Lat) - the hope or expectancy of succession.
Any one who has a right to succeed to certain properties, either from his natural position (as an
heir) or from the terms of a will, but whose right at the same time, is one which may be defeated,
is said to have a spes successionis. Thus, the son of a person has the hope of succeeding to his
fathers estate, and will succeed unless his expectation is defeated by his fathers act. So, also, a
substitute called to a succession under a simple destination, has the hope or expectancy of
succeeding, but merely the hope, since the institute may defeat it by altering the course of the
LEGAL LANGUAGE AND LEGAL WRITING 191

succession. Such a spes cannot be transferred by the heir expectant (sec. 6 of Transfer of Property
Act).
179. stare decisis - (Lat) - to stand upon decisions; to abide by the precedents.
180. status quo - (Lat) - the state in which; the pre-existing state of affairs.
181. suppreessio veri - (Lat) - the suppression or concealment of the truth.
see expressio falsi.
182. uberrimae fidei - (Lat) - of the utmost good faith; good faith of the most full and copius
character.
183. ultra vires - (Lat) - beyond the power; in access of authority.
An act performed by a delegatee not authorised by the principal in his favour, is said to be ultra
vires of the delegatee.
184. usufructs - (Lat) - fruits; income.
185. vicarious - (Lat) - substitute.
186. vis major - (Lat) - the greater or superior power.
The phrase vis major natur (the superior power of the nature) comprehends the force of the
elements, or force arising from natural causes which are irresistible, such as a violent gale of wind,
floods, earthquake, etc.
192 LANGUAGE AND THE LAW

LEGAL MAXIMS

INTRODUCTION TO LEGAL MAXIMS


A maxim is a sure foundation or ground of art, and a conclusion of reason, so sure and
uncontrollable as that it ought not to be questioned. What is elsewhere called a principle, and is all
one with a rule, a common ground or axiom.
The language of legal maxims is almost invariably Latin, for they are commonly derived from the
civil law, either literally or by adaptation, and most of these which are not found in the Roman
sources are the invention of medieval jurists.
Law, like moral philosophy or politics, has its maxims which sum up in a pregnant sentence some
leading principle or axiom of law. According to Coke, quia maxima est ejusdignitas et certissima
auctoritas atque quod maxime omnibus probetur. The merit of maxims is twofold.
1. Their sententiousness: There are useful generalisations of law. As Wingate observes a maxim
is like a master key which opens many locks. In other words, maxims reduce all the cases to a
few theses.
2. Their epigrammatic form: Maxims are the proverbs of the law. They embody the wisdom of
many and the wit of one. The latinised dress in which they generally appears is only part of
this epigrammatic form - Latin more than any other language lending itself to point and
brevity.
These qualities of maxims have made them at all times a favourite form of legal currency,
tendered and accepted generally, or to take another mataphor, a portable armoury of legal
weapons.
However, maxims have the same merits and defects as other proverbs, being brief and pithy
statements of partial truths. Therefore, there are differences of opinion as to their utility as
foundation of law.
According to some authors, they express general principles without the necessary qualifications
and exceptions and they are therefore much too absolute to be taken as trustworthy guides to the
law. Brevity makes maxims occasionally obscure. They disguise, at times, a fallacy.
Lord Esher, M.R., in Yarmouth vs. France, (1887) 19 Q.B.D. p. 653, in connection with Volenti
non fit injuria, went so far as to say that they are almost invariably misleading, and for the most
part so large and general in their language that they always include something which really is not
intended to be included in them.
Similarly, the late Mr. Justice Stephen (History of Criminal Law, p. 94) wrote, They are rather
minims than maxims, for they give not a particularly great, but a particularly small, amount of
information. As often as not the exceptions and qualifications are more important than the so
called rules - which, while they mostly serve as good indexes to the law, are mostly bad abstracts
of it.
Some authors argue that it would be unfair to quarrel with the maxims for such reasons, because
maxims do not condense into a sentence the significance of a volume, or because it is apt at times
to tyrannise over the mind. Nowhere more than in the maxims does the robust good sense of the
Common Law of England displays itself.
Maxims of English law like the rules of the common law, derive their source and sanction from an
immemorial antiquity, from the frequent judicial recognition, and from the imprimatur sages of the
English law. Wingate has gone so far as to describe them as prime emanations of the Eternal
LEGAL LANGUAGE AND LEGAL WRITING 193

Wisdom. It is argued that maxims are principles and authorities, and part of general customs or
Common Law of England, and are of the same strength as Acts of Parliament, when the judges
have determined what is maxim.
Lord Bacon puts it quaintly thus, This delivering of knowledge is distinct and disjointed
aphorisms doth leave the wit of man more free to turn and toss and to make use of that which is so
delivered to several purposes and applications.
A maxim is said to be a proposition of all men confessed and granted, without argument or
discourse. Maxims of the law are holden for law.
False and misleading when literally read, these established formulae provide useful means of
expression of leading doctrines of the law in a form which at the same time brief and intellegible.
They constitute a species of legal short-hand, useful to the lawyer, but dangerous to anyone else;
for they can be read only in the light of expert knowledge of the law of which they are elliptical
expression.

SELECTED LEGAL MAXIMS

1. Actio personalis moritur cum persona - A personal action dies with the person.
This maxim describes a class of actions which do not transmit, but die with the person who had the
right to bring the action, or against whom it was brought. All penal actions are of this character.
Similarly, some of the civil actions in which the cause of action arises from delict belong to this
class. Actions for divorce are strictly personal to the offended spouse, and are barred, or after
commencement the action fails, by death, and cannot competently be commenced or continued by
the heir or representative of the injured party.
As against this, there is a class of actions which transmit to and against the heirs of the deceased.
This is expressed by another maxim actio contra defunctum coepta, continuatur in hredes.
Thus, the legal representatives of the deceased creditor can sue the debtor for the recovery of the
loan due to the deceased. Similarly, the legal representatives of the deceased debtor are liable, so
far as they have assets of the deceased debtor in their hands, to pay the debt of the deceased
debtor.
Thus, where the action is based on the proprietary rights of the deceased, the action continues even
after his death. This is because as soon as the death occurs, law divests the deceased of the
proprietary rights and vests the rights in his legal representatives. Therefore, they step into the
shoes of the deceased and get a right to sue if the deceased has not yet filed the suit, or continue
the suit already filed by the deceased, on the basis of this proprietary right. On the other hand, the
legal representatives of the deceased may also be sued in such cases. But the case of personal
rights is different. That right is not transmitted to the legal heirs of the deceased, and therefore,
they cannot file a suit or continue a suit based on such personal right. Conversely, they cannot be
sued also.
This rule of Common Law has been encroached upon by various statutes in England as well as in
India. Motor Vehicles Act, Workmens Compensation Act, etc. are the main examples.

2. Actus non facit reum nisi mens sit rea - Act does not make a man guilty unless there be a
guilty intention.
This maxim lays down the fundamental principle of criminal law. A person cannot be punished for
committing an offence without any intention or negligence on his part. Thus, if a person takes the
property of another thinking it to be his, he is not guilty of theft. Similarly, a person cannot be
194 LANGUAGE AND THE LAW

punished just because he intended to commit an offence. Thus, if a person intends to take the
property of another, he is not liable for theft. Only when a person takes the property of another
with an intention to commit theft, he is liable. Thus, to constitute a crime, both act and intention to
commit the act must be present.
Actus reus refers to the result of the act. Act, here, includes omission. Thus, doing an act which is
legally forbidden is unlawful. So also not doing some acts which the law requires a person to do is
unlawful.
Mens rea is refers to the mental condition of the accused. It takes three forms, viz.,
1. intention,
2. rashness, or
3. negligence.
Under Indian Penal Code, the term mens rea as such is not used anywhere, but term like,
intentionally, voluntarily, negligently, dishonestly, etc. have been used to denote the mental
element in the definitions of various offences.
The general rule that mens rea is necessary to constitute an offence is subject to certain
exceptions. In some cases the law holds a person guilty of committing an offence even though
mens rea is absent. Such liability is called strict liability.
See supra (Terms 5, 121) actus reus; mens rea.

3. Audi alteram partem - Hear the other side.


Natural justice is made of two rules:
1. Nemo judex in causa sua (No one should be a judge in his own case), and
2. Audi alteram partem (Hear the other side).
According to this second rule of natural justice, no one should be condemned, punished, or
deprived of his life or property in any judicial proceeding, unless he had an opportunity of being
heard.
To satisfy this rule, certain procedural safeguards are provided to the parties in any judicial
proceeding:
1. Right to notice - Place, time and date of hearing and the officer conducting the hearing must
be intimated to the parties. Further, the allegations against them should be made known to
them, so that they can answer the same.
2. Right to present case and lead evidence.
3. Right to rebut adverse evidence - This includes the right of cross-examination and legal
representation. Further, no evidence shall be collected behind the back of the party.
4. Right to reasoned decision or speaking order - The judgment or order must show the reasons
therefor.
A decision given in violation of the above rule may be set aside. However, there are certain
exception to this rule:
1. In case of emergency
2. In case of confidentiality
3. In case of routine matters such as academic adjudication
4. In case of impracticability
5. In case of interim preventive action
LEGAL LANGUAGE AND LEGAL WRITING 195

6. In case of legislative action


7. In case of statutory exception
8. In case of necessity
9. In case of contractual arrangement

4. Cessante ratione legis cessat ipsa lex - When the reason of any particular law ceases, so
does the law itself.
Reason is the soul of the law and when the reason of any particular law ceases, so does the law
itself. Similarly, when the grounds or reason which gave rise to a law cease to exist, the law itself
ceases to exist. It is obvious that if the circumstances which rendered the passing of a law
necessary cease to exist, for if the same circumstances again emerge, the law itself will cease to be
operative. But it can scarcely be said that the law ceases to exist, for if the same circumstances
again emerge, the law does not need to be re-enacted, but may at once be put into force: unless in
the meantime it should have been repealed, or should have fallen into desuetude. The maxim must
therefore be read in this limited sense, - that when the necessity for the law has ceased, the law is
for the time inoperative, just as if it did not exist at all. For instance, a member of Parliament is
privileged from arrest during the session, in order that he may discharge his public duties and the
trust reposed in him; but the reason of this privilege ceases at a certain time after the termination
of the parliamentary session because the public has then no longer an immediate interest in the
personal freedom of the individuals composing the representative body. This maxim, thus, if read
literally, and in its widest signification, is erroneous and misleading.
This finds familiar illustration in the protection from all civil process given to a foreign
ambassador whilst in the exercise of the duty of his office; to Members of Parliament during the
sitting of Parliament; to judges exercising their judicial functions; to barristers attending the courts
of law and equity, and others; the reason being that such protection is necessary for the
performance by them of their respective duties; but the moment they cease to be so acting, the
protection so afforded them also ceases. This maxim is also applicable to property, and finds
illustration in the case of a proprietor who is responsible for the due performance of rights and
duties respecting his property so long as he is the owner thereof; but so soon as the property passes
from him the incidents connected therewith which the law attaches thereto also pass. But the
maxim is not of universal application. For instance, in Edwards vs Porter, [1925] AC 1, a majority
of the House of Lords held that though a wife could, after the Married Womans Property Act,
1882, be sued for her post-nuptial torts, her husband should still be joined in the action. See the
maxim used in the dissenting judgment of Viscount Cave p. 10 and see for the present law, Law
Reform (Married Women and Tortfeasors) Act, 1935, sec. 3.

5. Communis error facit jus - Common error sometimes passes as current law.
Common error makes a rule of law. When an erroneous practice has become general, and
prevailed for a considerable period, an especially where the parties to some transaction have
depended upon the prevailing practice as correct, the Court will not give effect to any objection or
defence founded on it as error. It is necessary, however, that the error be general and of long
standing.
The above maxim must be applied with very great caution. It has sometimes been said, observed
Lord Ellenborough, communis error facit jus; but I say communis opinio is evidence of what the
law is - not where it is an opinion merely speculative and theoretical, floating in the minds of
persons; but where it has been made the groundwork and the substratum of practice (Isherwood
vs Oldknow, 16 RR 305).
196 LANGUAGE AND THE LAW

But, this maxim cannot be extended beyond the matters of practice. Erroneous views of the law,
however widely held and acted upon, and even where indorsed by decisions, are no answer to the
enforcement of the law when the error has been discovered and clearly ascertained; otherwise an
error as to the law or a misconception of it would destroy the law (Anderson vs. MCall, 4 Macp.
765). In like manner, communis error and a long course of local irregularity, have been found to
afford no protection to one who was answerable for skill in his profession. In the case of
OConnell vs. Regina, 11 Cl. & F. 372, it was remarked by Lord Denman, in giving judgment in
the House of Lords, that a large portion of the legal opinion which has passed current for the law
falls within the description of law taken for granted, and that, when in pursuit of truth, we are
obliged to investigate the grounds of the law, it is plain and has often been proved by recent
experience, that the mere statement and restatement of a doctrine the mere repetition of the
cantilena of lawyers cannot make it law, unless it can be traced to some competent authority,
and if it be irreconcilable to some clear legal principle.

6. Delegatus non potest delegare - Delegate cannot further delegate.


This rule applies in case of agency. Wherever the delegation of authority involves a trust in the
agent or the capacity of the agent to properly execute the work for which he is selected. In such
cases, the agent may have been appointed by the principal because of that agents skills,
experience, talent, honesty, etc. But where such a thing is not involved in the appointment of
agent, this rule does not apply.
This rule is also applicable in administrative law, in respect of delegation of quasi judicial, quasi
legislative or administrative functions and in case of delegation of legislative functions. But where
the functions are purely ministerial in nature, this rule is not applicable.

7. Ex nudo pacto non oritur actio - From a bare contract an action does not arise.
A nudum pactum under the civil law was a bargain, promise, or engagement undertaken or given
without consideration, and did not constitute an obligation which could be enforced.
This law does not have application under some legal systems, such as the Scotch legal system,
where promises and engagements may be enforced, although granted gratuitously and without
consideration.
A consideration of some sort or another is so necessary to the forming of a contract, that a nudum
pactum, or agreement to do or pay something on one side, without any compensation on the other,
will not at law support an action; and a man cannot be compelled to perform it (2 Bl. Com. 445).
Thus, for instance, in Folkes vs Beer (1884), LR 9 HL 605, the House of Lords held that an
agreement between a judgment creditor and judgment debtor that in consideration of the debtor
paying down part of the judgment debt and the rest by instalments the creditor would not take any
proceedings on the judgment was a nudum pactum, being without consideration and did not
prevent the creditor, after receiving the whole debt and costs, from enforcing payment of the
interest on the judgment. Where indeed a promise is made under seal, the solemnity of that mode
of delivery is held to import, at law, that there was a sufficient consideration for the promise, so
that the plaintiff is not in this case required to prove a consideration; nor can the deed be
impeached by merely showing that it was made without consideration. But such a deed gives no
right to specific performance.

8. Ex turpi causa non oritur actio - An action does not arise from a disgraceful or immoral
consideration.
No action can be maintained on a contract or obligation, the consideration of which is disgraceful
or immoral.
LEGAL LANGUAGE AND LEGAL WRITING 197

Every agreement, bargain, or contract is illegal within the meaning of this maxim, the purpose of
which is to do or carry out something opposed to the law of the land, or which is opposed to sound
policy or morality. Of the first class (those which are in opposition to the rules of law, and
forbidden) may be instanced the pactum de quota litis, a bargain between agent and client to the
effect that the former will receive a part of the subject of the lawsuit instead of his ordinary fees.
Contracts for smuggling of goods in defraud of the revenue, and obligations for gambling debts,
are of the same class, and give rise to no action. Trustees are not allowed to purchase the property
of the trust, because that would be opposed to the sound policy, enabling them to enrich
themselves at the cost of those whose interest they as trustees are bound to protect. Contracts or
agreements whereby one is to receive a sum of money for bringing about a certain marriage, or
contracts or obligations imposing a restraint on marriage, are regarded also as inconsistent with
sound policy, and are ineffectual. Obligations granted as the wages of prostitution, or for money
given as an incentive to commit crime, or conceal crime, are illustrations of agreements contra
bonos mores (against morality). None of these agreements can be enforced.
Maxims Ex maleficio non oritur contractus and Ex facto illicito non oritur actio are also to the
same effect.

9. Falsus in uno falsus in omnibus - False in one thing is false in everything.


If a witness on oath in giving evidence makes a statement which is manifestly false, the effect of it
undoubtedly will be, and most properly so, to cast doubt over the whole of his evidence. His
credibility will thereby be so affected as to make his evidence of little or no value. At the same
time it would be rash to reject the whole testimony of a witness because in one part of it he has
been guilty of falsehood; there may be motives inducing the witness to falsehood on one branch of
the case in which he is being examined which do not operate in regard to other parts of it. The
whole evidence given will be weighed by the judge or jury, and that which a witness says which
appears to be true will receive weight, although he may have also told something which is false;
his whole evidence is not necessarily to be disregarded because it is not all true. Under English
law, a person convicted of perjury was formerly held to be inadmissible as a witness, but that is no
longer so.
This maxim may properly be applied in those cases only where a witness speaks to a fact with
reference to which he cannot be presumed liable to mistake.

10. Generalia specialibus non derogant - General things do not derogate from special things.
Where a deed contains provisions of a general nature, and also others which are special, the latter
may limit the application of the former, but the special are never limited or explained by the
general. This rule applies whether the deed be unilateral, as, for example, a deed of settlement, or a
contract to which there are several parties.
Special Acts are not repealed by general Acts unless there be some express reference to the
previous legislation, or a necessary inconsistency in the two Acts standing together, which
prevents the maxim from being applied: Harlow vs. Minister of Transport [1951]2 K.B. 98.
A general provision relating to meetings and the formalities to be served in connection therewith
does not become inapplicable in toto to a particular meeting mentioned in another section simply
because some of the language of the general section is not applicable to a meeting of the later
description [54 Bom. 908 = 130 I.C. 385 = 32 Bom.L.R. 1252 = AIR 1930 Bom. 584].
For the application of the maxim to statements by accused to Police see 54 Cal. 237 = 99 IC 227 =
28 Cr.L.J. 99 = AIR 1927 Cal. 17].
Specialia derogant generalibus - Special provisions derogate from general.
198 LANGUAGE AND THE LAW

11. Ignorentia facti excusat, ignorentia juris non excusat - Ignorance of fact is an excuse,
ignorance of law is not an excuse.
Ignorentia juris non excusat - Ignorance of law is no excuse.
Ignorantia legis neminem excusat - Ignorance of law does not afford excuse.
The word juris in this maxim means the settled general law of the Country. A person is not bound
to know the true solution of a doubtful point of law, nor the true position regarding private rights,
even his own: Cooper vs. Phibbs L.R. 2 H.L. 149, p.170 per Lord Westbury; Solle vs. Butcher
[1950]1 K.B. 671.
As observed by Lord Tindal, C.J., in MNaghtens Case, law is administered upon the principle
that every one must be taken conclusively to know it without proof that he does not know it.
Therefore, every one is presumed to know the law, and therefore, a plea of ignorance will not
excuse a breach of it. This rule makes it compulsory for everyone to know the law of the land.
Even foreigners are not excepted from the application of the rule. Every person who enters the
territory of any country, by implication agrees to know and be bound by the laws of that country.
Ignorance, when not plainly culpable, may induce lineancy, as where a law newly promulgated,
and the provisions of which are not yet generally known, has been broken.

12. In jure non remota causa, sed proxima spectator - In law, immediate not remote cause, of
every event is regarded.
It frequently happens that a wrongful act has been done to a person, he suffers damage and he has
a cause of action for the wrongful act, and yet he cannot found any claim for compensation for the
particular damage because the connection between such damage and the wrongful act is
insufficient: the damage is too remote. The law must abstract some consequences as relevant not
perhaps on grounds of pure logic, but simply for practical reasons: Liesbosch Dedger vs. Edison,
[1933] A.C. 449, p.460 per Lord Wright.
Also causa proxima et non remota spectatur.

13. In pari delicto potior est conditio defendentis - Where both parties are equally at fault, the
condition of the defendant is the stronger.
In equal delict, the position of the defender is the stronger. Where a claim arises, or is based upon
a delict in which both parties are equally concerned, the person resisting the claim is in a stronger
and better position than the person making it. In illustration of this, suppose the case of two
persons engaged in a smuggling transaction, and that the smuggled goods are in the possession of
one of the parties. His positions who holds the possession of the goods is the stronger, because his
co-adventurer cannot either recover any part of the goods or their value. If the latter was to raise
an action for the delivery of the part of the goods or their price, his action could not be successful
if the other pleaded that the goods or the money in question were the result of an illegal
transaction.
The law will take notice of an illegal transaction to defeat a suit, not to maintain one. Thus, in
Taylor vs. Chester, (1869) L.R. 4 Q.B. 309, the plaintiff failed to recover the half of a 50l. note
deposited with the defendant as a security for a debt contracted for wine and suppers supplied to
the plaintiff by the defendant for consumption in a brothel kept by her, inasmuch as the plaintiff
could not recover without showing the true character of the deposit.
The rule is well settled, as to executed contracts, that if the parties be in pari delicto, they will be
left where they have placed themselves. They do not come into the Court with clean hands. If,
however, one party is but an instrument in the hands of another, then they cannot be said to be in
LEGAL LANGUAGE AND LEGAL WRITING 199

pari delicto. Story says, And, indeed, in cases where both parties are in delicto, concurring in an
illegal act, it does not always follow that they stand in pari delicto; for there may be, and very
often are, very different degrees in their guilt. One party may act under circumstances of
opposition, oppression, hardship, undue influence, or great inequality of condition or age, so that
his guilt may be far less in degree than that of his associate in offence.
In pari delicto potior est conditio possidentis - Where both parties are equally at fault, the
condition of the possessor is the stronger.
When one is in possession of a subject, he is not bound to cede possession to any one showing as
good a title to it as that on which he possesses. The claimant or challenger must show a better title
than the possessor, for the law presumes right to possess where possession is held. Law is in
favour of continuing the possession of the possessor than in disturbing it.
Also In quali jure melior est condition possidentis.

14. Omnia prsumuntur contra spoliatorem - All things are presumed against a wrong doer.
The wrong-doing to which this maxim has reference is that which can be so regarded by law, and
does not include those acts which, however wrong according to a moral standard, are still within
the legal right of the doer. As a general rule, also, the maxim does not apply in criminal cases,
where (with very rare exceptions) there is no presumption against the accused, but everything
essential to guilt must be proved. But the maxim has application in many circumstances in civil
cases. For example, if one of the parties to a suit calls for the production of an agreement or letter
or other document in the possession of his opponent, the terms of which are in dispute, and it
appears that the party having the custody of the document has wilfully destroyed it, the document
will be presumed to have been in its terms disadvantageous to the destroyer of it. So, also, where
the goods liable to duty are concealed on board a ship, the person concealing them will be
presumed to have concealed them for the purpose of defeating the revenue, and will incur the
penalties of smuggling, and the goods will be forfeited. Where articles of value are lent or
deposited, and the borrower or depository refuses to deliver them up, the presumption will be that
the article was of the most valuable description of its kind, and his liability for its price will be
ascertained according to that standard.
This maxim was applied in the leading case of Armory vs. Delamirie (1721, 1 Str. 505, where it
was held that where A had unlawfully detained jewels (of which only the size was proved) the
property of B, then the jewels must - unless produced - be presumed to have been of the finest
quality.

15. Qui facit per alium facit per se - He who does an act through another is deemed to do it
himself.
On this principle principal is liable for the acts of his agent. Similarly, a master is liable for the
consequences of any act done by his servant in the ordinary course of his duties. Thus, a driver,
while driving his masters car, should, through recklessness of inattention, inflict an injury upon a
pedestrian by driving the car over him, or otherwise, the master is responsible for the injury so
inflicted.
This maxim enunciates the general doctrine on which the law relative to the rights and liabilities of
principal and agent depends. Where B employs A to buy goods for him, B is liable in an action for
the amount. If a servant do what his mater ought to do, it is the same as though the master dir it
himself; and if a servant do any such thing without the consent of the master, yet if the master
subsequently ratify the act of the servant it is sufficient. The maxim applies to everything done by
the agent in the ostensible scope of his authority. It does not apply to the acts of the agent of an
agent.
200 LANGUAGE AND THE LAW

Where a notice was issued in pursuance of the resolution of the Standing Committee and it
appeared that the notice was to all intents issued by that body, though it was signed by the Chief
Officer, held, by Broomefield, J., that the notice can be taken to be that of the Standing Committee
by applying this maxim. [32 BomLR 757 = AIR 1930 Bom 352] See also 30 BomLR 364; 12 MIA
157 (195-197) = 11 WR (PC) 19].
Applicability of this maxim to the civil law and not criminal law. See AIR 1937 Rang. 117.

16. Rex non potest peccare - The king can do no wrong.


It is not to be presumed that the king will do or sanction anything contrary to law, to which he is
equally amenable with his subjects [rex est major singulis, minor universis]. But if an evil act be
done, though emanating from the king personally, it will be imputed to his ministers, and the king
is in no way responsible for their acts. Upon this principle the king cannot be prejudiced by the
wrongful acts of his servants nor by errors in letters patent, etc.

17. Salus populi est suprema lex - The welfare of the people is the supreme law.
Private or individual rights and interests must always give place to the public welfare. So, where a
railway or public road is to be made, the private rights of the owners of the land over which it is to
pass have to give way before the public advantage to be conferred by the new works. So also the
house of a private proprietor may lawfully be destroyed or injured for the purpose of checking a
fire which might otherwise spread to the injury of the town. The public welfare justifies what
would otherwise be an illegal or unjustifiable interference with private property.

18. Sic utere tu ut alienum non ldas - Enjoy your property in such a manner as not to injure
that of another person.
This maxim of the civil law contains the only restriction laid upon the otherwise unlimited right
which a proprietor has of using his property according to his own pleasure. Even where the use to
which a proprietor puts his subject is injurious to his neighbour, yet if it be for his own advantage,
and not merely a wanton or malicious act intended to injure, such use cannot be interfered with,
for utitur suo jure. But, on the other hand, an act of the proprietor done in mulationem vicini,
may be interdicted.
Lord Wright observed in Sedleigh-Denfield vs OCallaghan ([1940] AC 880, at p. 903), This,
like most maxims, is not only lacking in definiteness but is also inaccurate. An occupier may make
in many ways a use of his land which causes damage to the neighbouring landowners and yet be
free from liability. This may be illustrated from Bradford Corporation vs Pickles [1895] AC 587.
Even where he is liable for a nuisance, the redress may fall short of the damage, as, for instance, in
Colls vs Home and Colonial Stores [1904] C 179. A balance has to be maintained between right of
the occupier to do what he likes with his own, and the right of his neighbour not to be interfered
with.

19. Ubi jus ibi remedium - Where there is a right there is a remedy.
Jus signifies here the legal authority to do or to demand something; and remedium may be defines
to be the right of action, or the means given by law, for the recovery or assertion of a right. A man
who has a right to vote at an election for Members of Parliament may maintain an action against
the returning officer for maliciously refusing to admit his vote, though his right was never
determined in Parliament, and though the persons for whom he offered to vote were elected; and
Lord Holt observed that, if men will multiply injuries, actions must be multiplied too, for every
man that is injured ought to have his recompense [Ashby vs White, 1 Smith LC].
LEGAL LANGUAGE AND LEGAL WRITING 201

Remedium includes more than is usually included in the English term remedy. It means right of
action as well as remedy. Thus where ones right is invaded or destroyed, the law gives a remedy
by interdict to protect it, or damages for its loss, and where ones right is denied the law affords
the remedy of an action for its enforcement. Wherever, therefore, a right exists, there is also a
remedy - i.e., an action to enforce it, to protect or replace it.

20. Ut res magis valeat quam pereat - It is better for a thing to have effect than to be made
void.
This maxim expresses a rule to be observed in the construction of deeds or contracts. When the
writing is ambiguous, and open to construction, that construction of it is to be preferred which will
make it of avail, rather than that which, if adopted, would make it of no avail. The contract or
writing having been executed presumably with the view of having some effect, no construction of
it will readily be adopted which would result in making it a dead letter. The intention of parties
will rather be sought for, and given effect to.
There are other maxims to the same effect: Benedicta est expositio quando res redimitur a
destructione (That exposition, or construction, is to be commended by which the matter is rescued
from destruction; Benigne faciend sunt interpretationes ut res magis valeat quam pereat (Liberal
constructions are to be given, so that the matter may be made of avail rather than be destroyed);
Ut res valeat potius quam pereat (That the thing may avail, or be valid, rather than perish, or be
invalid.

21. Vigilantibus non dormentibus jura subvenienta - The laws assist those who are vigilant,
not those who sleep over their rights.
On this maxim preference is given in competition to rights which have been first perfected, and to
diligences which have been first used; those who have been most watchful of their rights, and
careful to use the legal means of securing them, being best entitled to the benefits which the law
confers or affords.
This maxim is gives us the basic principle of law of limitation. A person whose rights are violated
is expected to seek legal remedy without delay. Law of limitation lays down the period within
which the right should be enforced by starting the legal action. This period is reckoned from the
date of cause of action or from the date on which the person became aware of violation of his
rights, whichever is later. After the expiry of the period of limitation no legal action can be
brought seeking the remedy. However, it must be noted that limitation bars only the remedy and
not the right itself. Thus, the right of the person continues, but the remedy to enforce that right
lapses after the period of limitation. Thus, if a creditor does not file a suit to recover loan within a
period of 3 years, he cannot bring an action to recover the loan, though his right to recover the
loan does not lapse. This is described by saying that before the lapse of the period of limitation,
his right is a perfect right, while after the lapse of period of limitation it becomes an imperfect
right.
On the other hand, prescription not only bars the remedy, but removes the right itself. Thus, where
a persons land is occupied by a trespasser, he should bring an action within a period of 12 years,
or else, the trespasser will become the owner of the land by adverse possession. Prescription is
founded in part upon this maxim; for rights are cut off in pnam of the neglect of the owner to
enforce his rights as a presumption of abandonment or discharge.
In all actions, suits, and other proceedings at law and in equity, the diligent and careful plaintiff is
favoured to the prejudice of him who is careless. The Limitation Act, 1939, was made in
furtherance of this principle. And the equitable doctrine of laches denies relief to one who has long
and negligently delayed to sue for specific performance.
202 LANGUAGE AND THE LAW

22. Volenti non fit injuria - That to which a man consents cannot be considered an injury.
The import of this maxim is that, that which would amount to wrongful injury, subjecting the doer
of it in damages to the person injured, loses this character, if the person suffering the disadvantage
or injury consents to the performance of that act. To break down a neighbours wall, to build upon
his land, or to do anything inflicting damage upon him entitles him to damages, but if his consent
to the act has been obtained, it takes away that which was wrongful in it, and at the same time
takes away all the claim for damages on account of it.
Injuria signifies, not injury or damage, merely, but injury or damage wrongfully inflicted, and
giving rise to a claim or reparation. This maxim has often been urged in defence where the damage
arose or was occasioned by a danger seen by the person injured, which was or known to the person
injured, to exist.
In actions founded on tort the leave and licence of the plaintiff to do the act complained of usually
constitutes a good defence; and as a rule a man must bear loss arising from acts to which he
assented. On this principle, when a man connives at or condones the adultery of his wife, he
cannot in such a case obtain damages from the seducer, nor sustain a petition for divorce. A
railway company usually owes a duty to a passanger to take reasonable care of him, but he cannot
demand such care if he expressly agree, in consideration of a free pass, to travel at his own risk.
To succeed under the maxim it is necessary for the defendant to prove that the person injured
knew of the danger, appreciated it, and voluntarily took the risk. That he had some knowledge of
danger is not sufficient. A man cannot voluntarily undertake a risk, the extent of which he does not
appreciate [1923 MWN 544 = 45 MLJ 53 = 17 LW 495 = AIR 1923 Mad. 565].
PART FOUR
WRITING IN GENERAL
DESCRIPTION AND NARRATION

Desribing facts of a case is an important and unavoidable part of an advocates profession. To tell
even a simple story well requires some practice. An uneducated person generally tells a tale badly.
He does not mentally look ahead as he tells it and plans it out. So he repeats himself, omits
important items, which he drags in afterwards out of place, and dwells too long on minor details
and fails to emphasise the leading points. To write a good story, you must have the whole plot
clear in your mind, and the main points arranged in their proper order.
If an advocate is unable to narrate even the facts of his case, he leaves poor impression in the
minds of the judges and fellow advocates, which adversely affects his profession. Therefore, it is
imperative on the part of an advocate to practice the art of description and narration.
In this exercise you are not asked to make up a story. The plot of each story is given to you, more
or less fully, in the outlines provided. But an outline is only a skeleton; it is your work to clothe
the skeleton with flesh and breathe life into it. You must try to produce a connected narrative, and
to make it as interesting as you can.
We narrate what we have seen, what we have heard, and what we spin out of our imagination. The
narrative may be the result of one or two of the above experiences or a mixture of all. The subject
of a narrative is usually an incident or a chain of incidents or experience, physical or menta1.
If the narrative involves an event or incident or an experience we catll it a simple narrative. In this,
time and sequence are the important factors. The questions that are put and their answers are
usually in this order:
What is this event or incident?
When did it occur?
What happened after it?
What next?

TEMPLE THEFT

Look at the following questions carefully, and then read the story from the newspaper; then write
answers to the questions:
(a)
When was the Kali Temple built?
(b)
What is the earliest event in the story?
(c)
What was going to be done in the first week of September?
(d)
For how many days were the idols missing?
(e)
Why is the arrest, the last event in the story, the first event mentioned in the newspaper
report?
(f) How were the idols stolen?
(g) Who were the culprits and when were they arrested?
(h) Was it necessary that the investigating officers were given special awards?

205
206 WRITING IN GENERAL

RARE KALI IDOLS SEIZED: TWO HELD


(From our correspondent)
Jaipur Sept. 25

The Jaipur, Crime Branch Police nabbed two idol-lifters here in


the early hours of today and recovered from them the entire set of
twelve idols stolen by thern from the 250-years old Kali Temple in
Arner about ten Kilometres from here. The value of the 12
exquisite bronze idols was Rs. 3.5 lakhs. The idols seized
included that of the main deity. This was announced here by Mr.
B. Sanyal, Superintendent of Police, Jaipur. The temple
authorities had arranged a Yagna in the first week of this month,
before starting some renovation work, but on the morning of
September 8th they found the front door of the temple forcibly
opened and all the 12 idols missing.
The yagna wad immediately cancelled. The police were infor meet.
The Crime Branch officers arrested Lachha, a porter from Johri
Bazar and his associate, Sundar, as they were allegedly trying to
dispose of the idols through a hotel employee.
Ten of the idols seized are rare pieces of art. The Police Chief has
recommended a suitable reward to the investigating team of the
officials.

A PICKPOCKET
Rajan found a purse. Fifteen minutes later Rajan was examining the contents of his find. The purse
contained ten rupees in coins and twenty in currency notes and a few paise. Rajan tucked the paise
at his waist in his loin cloth. Must give them to some beggars, he reflected generously. The thirty
rupees he bundled into a knot at the end of his turban a wrapped this again round his head. It
would see him through the rest of the month.
Then he opened the flap of the purse and through the slit at its side, he saw aballoon folded and
tucked away. Oh, this he bought He remembered the others talk about the motherless child,
Rajan was filled with pity at the thought of the young child perhaps of the same age as his
second son That motherless boy must have his balloon at any cost, Rajan decided. But how?
The balloon could not be handed back. The thing to do was to put it back into the empty purse and
slip it into the others pocket.
Even before the Magistrate Rajan kept saying, I was only trying to put back the purse.
(adapted from R. K. Narayans Trail of the Green Blazer)
Rajan had a conversation with the Police Sub Inspector. Here are the things that Rajan said in that
conversation. Study them and then write down the suitable questions.

S.I. :
R. : Rajan, sir.
LEGAL LANGUAGE AND LEGAL WRITING 207

S.I. :
R. : 46, Ramakrishnapuram.

S.I. :
R. : I do various odd jobs, as a day-labourer and that sort of thing.

S.I. :
R. : I was going through the market on my way to work.

S.I. :
R. : But I didn't take it. I was putting it back.

S.I. :
R. : I picked it up when.the man dropped it after buying his balloon. He was walking quickly,
so I followed him through the crowd to put it back.

S.I. :
R. : I caught up with him when he stopped to listen to the sermon of a priest.

S.I. :
R. : I was just about to tell him what I was doing when he seized my arm and began to hit me.

S.I. :
R. : No, I am not a pickpocket. 1 told you 1 work as a respectable day-labourer and earn my
honest 5 rupees a day.

S.I. :
R. : That is my week's wages.

S.I. :
R. : I don't know where his thirty rupees are, but these thirty rupees are my honestly-earned
wages.

S.I. :
R. : Yes Sir. You may. He will verify.

S.I. :
R. : Then you may clap me in jail.

S.I. :
R. : I dont know, but I can lead you to his house.
208 WRITING IN GENERAL

XXV. ESSAY WRITING

The dictionary meaning of the word essay is a literary composition (usually prose and short) on
any subject. According to Wren and Martin, in its strict sense, essay is a written composition
giving expression to ones own personal ideas or opinions on some topic, though the term usually
covers also any written composition, whether it expresses personal opinions, or gives information
on any given subject, or details of a narrative or description. Wren and Martin also observe that
the word essay is somewhat loosely applied to a variety of compositions, from Bacons
compressed essays on the one hand, to those so called Essays of Macaulay, some of which are
lengthy articles, almost as big as small books, on the other.

In ordinary course of his profession, an advocate is never called upon to write an essay. But in law
curriculum essay is introduced, and with very good reasons. So far as our curriculum is concerned,
an essay is an exercise in composition. Literal meaning of the word essay is an attempt. The essays
you write we write here are trial exercises or attempts to express your thoughts in good English.

At its best, an essay is the highest form of English prose, and called for the exercise of faculties
not brought into operation in ordinary professional communication. A student of law who is
desirous of improving his style, and of adding to his stock of literary ideas, will do well not only to
read, but also to study the essays of Steele and Addison, of Lamb, Halitt and De Quincey, of
Froude and Macaulay, of Matthew Arnold, Birrell and Belloc. In their writing one may not find
anything pertaining to law, but he will find choice of diction, felicitous expression, and polished
phrase, as well as clear and logical arrnagement of matter, originality of ideas, and thoughtful
criticism.

A man desirous of influencing his reader or listner must have an idea and a style, i.e., he must
have something to say and a good way of saying it. A person cannot write on any subject unless he
has the knowledge of facts. No wealth of vocabulary, no choice of diction, no skillful arrangement
of phrase and sentence will compensate for ignorance of the subject. Polished manner will never
excuse deficient matter.

Exercises in essay writing helps one to develop the skills of gathering the facts and figures
required to write on any topic. It also helps him to put these facts in an impressive manner. An
advocate is required to narrate facts and convince the judge that the law is on his side. To do this
he will have to exhibit more or less the same skills which he will be using in writing an essay.
Hence, exercies in essay writing are more helpful to a student of law than to anyone else.

CHARACTERISTICS OF A GOOD ESSAY


According to Wren and Martin, the following are the characteristics of a good essay:
1. Unity. An essay must be a unity developing one theme with a definite purpose.
2. Order. The essay should follow a certain line of thought and come to a definite conclusion. It
should not consist of haphazard reflections put down anyhow.
3. Brevity. The essays written in the examinations should not be long.
4. Style. The style of an essay must be dignified and literary. Slang, colloquial terms and free and
easy constructions are not proper in an essay.
5. The Personal Touch. An essay should reveal the personal feelings and opinions of the writer. It
should have his individuality in it.
LEGAL LANGUAGE AND LEGAL WRITING 209

Power of expression and manner of expression are of great importance if the essay has to be
effective. When a candidate at the engineering examonation is asked to write an essay on
Semiconductors, the object of the examiner is to find out his knowlede of semiconductors, i.e.,
the extent and accuracy of his technical knowledge on the given subject. When a candidate at an
examination in English is asked to write on the same subject, the object is different. Here, the
examiner is not very much concerned about the candidates knowledge on the given subject, but he
is interested in discovering whether or not the candidate is able to express his knowldege in a
correct and suitable language. At an examination in engineering a mistake in English might be
excused; at an examination in English an error in grammar or in construction would be more
serious than a misstatement of fact. In law, on the other hand, both are important. Law being a
technical subject, accuracy of facts is extremely important, and at the same time its precise
expression is also equally important. A grammatical mistake or a mistake of spelling or
construction which may lead to a different meaning than the one which is intended by the author
or speaker is viewed seriously.

PREPARING TO WRITE AN ESSAY

According to Wren and Martin, there are three stages in preparing to write an essay:
1. General Preparation A student who is preparing himself for the writing of essays at an
examination should ever be adding to his stock of general knowledge by
(a) Reading
(b) Observation
(c) Conversation
A writer reads, observes, and gets people to talk; and in these ways he is always enriching his
mind with ideas and knowledge.

2. Special Preparation At an examination, a choice of subjects on which to write an essay is


always allowed to enable the candidate to select the one of which his knowledge is the most
extensive and accurate. The candidate should always choose the subject which appears to him to
be the easiest. A well-written essay on what seems to be an easy subject will obtain more credit
than a poorly written essay on a subject apparently more abtruse. If the essay is to be nicely
rounded-off and complete the student must follow the following steps at the time of preparing
for examination:
(a) Defining the Subject
(b) Collecting materials
(i) Reading up the Subject
(ii) Collection
(iii) Selection
(c) Logical Arrangement
(i) Making the outline
(ii) Filling in the Outline

WRITING ESSAY
At the time of writing an essay at the examination, the following points are recommended by
Wren and Martin.
210 WRITING IN GENERAL

1. Paragraphs Every essay should be divided into paragraphs, and each heading should have at
least one paragraph to itself. An essay not thus paragraphed looks unattractive, and is not easy
to read. In constructing a paragraph these principles should be kept in view:
(a) Unity. The paragraph must treat of one subject only.
(b) Variety. Paragraphs should not all be of the same length or of the same monotonous
structure.
(c) Logical sequence of thought.
(d) Topical sentence. The most important sentences of a paragraph are the first and the last.

2. Structure of an Essay We may divide an essay into three parts the Introduction, the Body of
the Essay, and the Conclusion.
(a) The Introduction
(b) The Body of the Essay
(c) The Conclusion
3. Style in Writing Use a simple, direct and forceful style in writing. Be natural: Do not try to
imitate any authors style, however eloquent, but be yourself.

SUMMARY OF METHOD OF PROCEDURE


To sum up:
1. Clearly define your subject in your own mind.
2. Think over it, until ideas about it come into your mind, and jot the points down on paper as
they occur to you numbering them.
3. Classify these points in groups under suitable headings, rejecting any that are unsuitable.
4. Arrange these headings in a bare outline.
5. Fill in the ouline, making a full outline.
6. Now begin to write the essay, dividing it into paragraphs.
7. The essay should consist of introduction, body and conclusion.
(a) Make the introduction arresting.
(b) Keep the parts of the body, of the essay in proper proportion; and take pains in choosing
words, construcing sentences and building up paragraphs.
(c) Make the conclusion effective and satisfying.
8. Write in a simple, concise, clear, direct and natural style.
LEGAL LANGUAGE AND LEGAL WRITING 211

PRCIS-WRITING
A prcis is an abstract, a summary of a given passage. It has to be brief and precise, containing all
the essential ideas of the original and keeping out all non-essential details. It should bring out the
spirit of the original.
In writing prcis, therefore, you must exercise a strict economy in the use of words a wholesome
discipline desirable in all forms of composition, but imperative in prcis. In an examination you
are generally instructed to limit your prcis to a certain number of words and you must on no
account exceed that limit; but strict observance of it does not absolve you from the duty of using
throughout the most concise forms of expression consistent with clarity.
Prcis-writing must not be confused with paraphrasing. A paraphrase should reproduce not only
the substance of a passage, but also all its details. It will therefore be at least as long as, and
probably longer than, the original. But a prcis must always be much shorter than the original; for
it is meant to express only the main theme, short of all unimportant details, and that as tersely as
possible. As the styles of writers differ, some being concise and some diffuse, no rigid rule can be
laid down for the length of a prcis; but so much may be said, that a prcis should not contain
more than a third of the number of words in the original passage.
Success in prcis-writing depends mainly upon two things:
1. A thorough knowledge of and ability to use the language.
2. Ability to grasp readily the important matters in a document
You may begin by learning to recognise and to avoid all forms of padding circumlocutions,
pointless repetitions, and verbosity generally.
We have already sufficiently dealt with about circumlocutions and tautology. Verbosity
(wordiness), a general term embracing circumlocution, tautology and other forms of
longwindedness, is often accompanied by excessive use of long words. It may be the result of
laziness or ignorance, i.e., reluctance or inability to express oneself simply and directly; or it may
arise from the notion that it is impossible to be formal or weighty or dignified without it.
Prcis-writing is a discipline in reading as well as in writing. A prcis-writer must make up his
mind from the beginning that prcis-writing means intensive brain-work. There is no easy short
cut to summarising a passage. To tear the heart out of a passage means concentrated thought, and
he must be prepared for close attention and hard thinking. He reads primaily for content. His mind
follows closely the drift of the thought and understands it in its entirety. His aim is to get to the
heart of the given passage.
When the ideas have been grasped, his next concern is to express them in his own words, briefly
and effectively. There should be no superfluous words in a prcis. A competent prcis writer
brings out the thought-content of the passage with the minimum use of words.
These two aspects of a prcis grasping the essential meaning of the substance of a given passage
and expressing it briefly and effectively are learnt through patient and constant practice. The
following practical hints given by Wren and Martin are of help in acquiring competence in prcis-
writing:

1. Reading
(a) First read the passage through carefully, but not too slowly, to get a general idea of its
meaning. If one reading is,not sufficient to give you this clearly, read it over again, and yet
again. The more you read it, the more familiar will it become to you.
212 WRITING IN GENERAL

(b) Usually you are required to supply a title for your prcis. This is a good stage at which to do
this. Think of some word, phrase or short sentence that will sum up briefly the main subject of
the passage. The effort to find a suitable title at this stage will help you to define in your mind
what exactly the subject, or main theme, of the passage is.
(c) Further reading is now necessary to ensure that you understand the details of the passage as
well as its main purport. Take it now sentence by sentence, and word by word. If the
meanings of any words are not clear, look them up in a dictionary. Detailed study of this kind
is necessary, because a phrase, a sentence, or even a single word, may be of prime
importance, and the misunderstanding of it may cause you to miss the whole point of the
passage.
(d) You should now be in a position to decide what parts of the passage are essential and what
parts are comparatively unimportant and so can be omitted without any loss. This selection
should not be in a haphazard or mechanical way. It requires some practice to be able to
identify the things essential to the meaning of the passage, and distinguish them from those
which are only incidental and unimportant. The best guide, of course, is the subject or main
theme of the passage. If you have a clear and correct idea of that you will soon see what is
important and what is unimportant.
At this stage it is useful to jot down your conclusions in brief notes-writing down the subject, the
title, and the details which you consider essential or important. This is a better plan than
underlining sentences and phrases in the original.

2. Writing
(a) Rough Drafts You should now be ready to attempt the writing of the prcis keeping in mind
the limits within which it must be compressed. You may use fewer words than the number
prescribed, but in no case may you exceed the limit.
It is not likely that your first attempt will be a complete success. The draft will probably be too
long. In fact you may have to write out several drafts before you find how to express the gist of the
passage fully within the limits set. A good deal of patience and revision will be required before
you get it right.
(b) Important Points The following points must be kept in mind:
(i) The prcis should be all in your own words. It must not be a patchwork made up of
phrases and sentences quoted from the original.
(ii) The prcis must be a connected whole. It may be divided into sections or paragraphs,
according to changes in the subject-matter, but these must not appear as separate notes,
but must be joined together in such a way as to read continuously.
(iii) The prcis must be complete and self-contained; that is, it must convey its message fully
and clearly without requiring any reference to the original to complete its meaning.
(iv) It is only the gist, main purport, or general meaning of the passage which you have to
express. There is no room in a prcis for colloquial expressions, circumlocutions,
periphrasis or rhetorical flourishes. All redundanies of expression must be rigorously
pruned. If faithful reproduction of the main theme is the first essential of a summary,
conciseness is the second.
(v) The prcis must be in simple, direct grammatical and idiomatic English.
LEGAL LANGUAGE AND LEGAL WRITING 213

(c) The Art of Compression You are not bound to follow the orginal order of thought to the
passage to be summarised, if you can express its meaning more clearly and concisely by
transposing any of its pails.

In condensing, aim rather at remodelling, than at mere omission, We may omit mere repetitions,
illustrations and examples; but we change figures of speech into literal expressions, compress
wordy sentences, and alter phrases to words.

Take a few examples


1. The dog that belongd to the tinker. 2. An effort that ended in failure.
The dog belonging to the tinker. An effort ending in failure.
The tinkers dog. An unsuccessful effort.

3. A house that resembled a palace. 4. A bearing that befits a king.


A house resembling a palace. A bearing befitting a king.
A palatial house. A kingly bearing.

5. Hayes Barton, where Raleigh was born.


Hayes Barton, Raleighs birthplace.

(d) Indirect Speech As a rule, a prcis should be written in indirect speech, after a verb of
saying in the past tense.
For example:
Whether we look at the intrinsic value of our literature, or at the particular situation of this
country, we shall see the strongest reason to think that of all foreign tongues the English tongue is
that which would be the most useful to our native subjects.
Macualay
Condensed in indirect speech:
Lord Macaulay said that Englands noble literature and the universality of her language made
English the fomign language most useful for India.
The change from direct to indirect speech calls for attention to the following points :

(i) Correct sequence of tense after the verb of saying in the past tense.
(ii) Clear differentiation of the various persons mentioned in the passage. Care must be taken
with pronouns he, she and they. To avoid confusion proper names should he used
occasionally.
(iii) Correct use of adverbs and other words indicating time.
(iv) Proper choice of verbs of saying, to indicate questions, commands, warnings, threats or
exhortations.

Great care must be taken to avoid lapsing into direct speech a very common fault.
Some passages, however, are best summarised in direct speech.
214 WRITING IN GENERAL

3. Revision

When you have made your final draft, carefully revise it before you write out the fair copy. Be
sure that its length is within the limits prescribed. Compare it with the original to see that you have
not omitted any important point. See whether it reads well as a connected whole, and correct any
mistakes in spelling and punctuation. grammar and idiom.
Then write out the fair copy neatly, prefixing the title you have chosen.

TO SUM UP

1. Read the given passage quickly but carefully to ascertain what it is about. A great deal depends
on this preliminary reading; and though, especially in the examination-room, it cannot be a
lengthy process, it must be thorough; a casual, cursory glance is not sufficient. If the drift of the
passage escapes you, if you mistake its aim, your prcis is bound to give a misleading
impression. If you try to give it a title, you will be getting at the central idea.
2. Immediately this first reading is completed, you should be ready with a title whether you are
asked for one or not. The title itself should be an epitome of the general purport of the passage
and the less vague and the more significant it is the better. A careful choice of title will enable
you in your prcis to stick to the point and preserve unity; and you will have a touchstone by
which to test the relative importance of different points.
3. Next examine the passage in detail, to make sure of the meaning of each sentence, phrase and
word. Collect the important thoughts and prepare a sketch of the precis. You could do this
during the second or third reading.
Note, and mark in pencil (1, 2, 3, 4, etc.) in the margin, where the main divisions fall where a
new incident or series of incidents, or a new topic, or a new stage begins and ends. You may
also care to indicate the important points in each division (1a, 1b, etc.) or underline the
significant words which give the clues to these points. But it is easy to overdo or misuse this
underlining device; some students end by underlining practically the whole of the passage the
result being that they are no nearer the accomplishment of their aim; others are tempted to
transfer the underlined words and phrases bodily into their prcis, a temptation to which it is
fatal to succumb.
Writing down brief notes of these thoughts or ideas is a better method than underlining key
words and phrases. Underlining important words has its own dangers. It offers the temptation
to follow the original in the order of the thoughts as well as in the manner of expressing them.
A better method would be to make marginal notes and then prepare a sketch out of them.
4. When the sketch has been prepared read the original over again to check if any important idea
or argument has been left out. This reading may help in rearranging your sketch.
5. Now give your sketch a cogency and prepare a draft of the prcis, keeping in mind length of
number of words prescribed for the precis. Take a sheet of paper and transfer to it in the form
of rough notes the main points in each division. These should be in your own words; and
during this stage the constructive measures such as the substitution of single words for whole
sentences and of details in generalisations will be of the greatest use. Your notes should be
comprehensive enough to enable you to write a rough draft of your prcis from them without
reference to the original passage; but do not copy down chunks of the original word for word.
You should condense by remodelling than by mere omission; and that your prcis must be self-
contained and a connected whole. Add nothing; make no comment; correct no facts.
LEGAL LANGUAGE AND LEGAL WRITING 215

6. Revise the draft checking not mererly for ideas but for expression as well. See if it reads like a
connected piece of composition. Clear up any obscurities or ambiguities. If it is too long, still
further compress it by omitting unnecessary words and phrases or by remodelling sentences.
Correct all mistakes in spelling, grammar and idiom, and see that it is properly punctuated. Let
the language be simple and direct. Count the number of words; if it exceeds the limit
prescribed, then you must continue the pruning or condensing processes until you have the
necessary reduction.
7. Now you may refer again to the original to make you have omitted nothing essential. Then
write fair copy. In its final form your prcis should be an abstract of the original without any
kind of flourish.

SIGNIFICANCE OF PRCIS WRITING


Value of Prcis writing as a mental discipline and as an exercise in expression needs no
elaboration. Prcis writing provides a valuable corrective to muddled thinking and loose, vague
and verbose expression. Ability to grasp the aim and to follow the thought and structure of a
passage is the first step towards a clear understanding of its meaning and thus towards the
detection of gaps faults in the development of its theme. The compression and re-statement of a
theme in concise and precise terms, with due respect to the true values of words, is not only a
further test of comprehension but is also an indispensable part of language training. For these
reasons, apart from its practical value in many walks of life academic, professional and
commercial prcis writing will always be sure of a place in the educational curriculum.
Moreover, it remains one of the few tests which enable examiners to gauge with a high degree of
accuracy the mental ability and equipment of their examinees.

USES OF PRCIS-WRITING

1. Prcis-writing is a very fine exercise in reading. Most people read carelessly, and retain only a
vague idea of what they have read. They are, therefore, often unable to recollect the substance
of what they have read, even within a short period. This is not because their memory is weak,
but because their attention was not fully centred on the passage while they were reading it. The
memory cannot retain what was never given it to hold; one cannot not remember a passage
properly if he did not properly grasp it as he read it. Prcis-writing forces one to pay attention
to what he reads; for no one can write a summary of any passage unless he has clearly grasped
its meaning. So summarizing is an excellent training in concentration of attention. It teaches
one to read with the mind, as well as with the eye, on the page.
2. Prcis-writing is also a very good exercise in writing a composition. It teaches one how to
express ones thoughts clearly, concisely and effectively. It is a splendid corrective of the
common tendency to vague and disorderly thinking, and loose and diffuse writing. Notice how
an uneducated person tells a story. He repeats himself, brings in a lot of irrelevant matter, omits
from its proper place what is essential and drags it in later as an after-thought, and takes twenty
minutes to say what a trained thinker would express in five. The whole effect is muddled and
tedious. In a prcis one has to work within strict limits. He must express a certain meaning in a
fixed number of words. So he learns to choose his words carefully, to construct his sentences
with an eye to fullness combined with brevity, and to put the matter in a strictly logical order.
3. So practice in Prcis-writing is of great value for practical life. In any position of life the
ability to grasp quickly and accurately what is read, or heard, and to reproduce it clearly and
concisely, is of the utmost value. For lawyers, businessmen, and government officials it is
essential.
216 WRITING IN GENERAL

Attempt prcis of the following passages:


1. There is another big difference between the natural slavery of man to Nature and the unnatural
slavery of man to man. Nature is kind to her slaves. If she forces you to eat and drink, she
makes eating and drinking so pleasant that when we can afford it we eat and drink too much.
We must sleep or go mad, but then sleep is so pleasant that we have great difficulty in getting
up in the morning. And firesides and families seem so pleasant to the young that they get
married and join building societies to realize their dreams. Thus, instead of resenting our
natural wants as slavery, we take the greatest pleasure in their satisfaction.
The slavery of man to man is the very opposite of this. It is hateful to the body and to the
spirit. Our poets do not praise it: they proclaim that no man is good enough to be another
man's master. The latest of the great Jewish prophets, a gentleman hdened Marx spent his life
in proving that there is no extremity of selfish, cruelty at which the slavery of man to men will
stop if it be not stopped by law. You can see for yourself that it produced a state of continual
civil war called the class war between the slaves and their masters, organized as Trade
Unions on one side and Employers Federation on the other. Saint Thomas More also held that
we shall never have a peaceful and stable society until this struggle is ended by the abolition
of slavery altogether, and the compulsion of everyone to do his share of the worlds work with
his own hands and brains, and not to attempt to put it on anyone else.
Naturally the master class, through its parliaments and schools and newspapers, makes the
most desperate efforts to prevent us from realizing our slavery.
- George Bernard Shaw

2. A healthy and progressive society requires both central control and individual and group
initiative: without control there is anarchy, and without initiative there is stagnation. Some of
the qualities that we should with to find in a community are in their essence, static, while
others are, by their very nature, dynarnic. Speaking very, roughly, we may expect the static
qualities to be suitable for governmental control, while the dynamic qualities should be
promoted by the initiative of individuals orgroups. But if such initiative is to be possible, and
it is to be fruitful rather than destructive, it will heed to be fostered by appropriate instructions
and the safeguarding of such institutions will have to be one of the functions of government. It
is obvious that in a state of anarchy there could not be universities or scientific research or
publication of books, or even such simple things as seaside holidays. In our complex world,
there cannot be fruitful initiative without government, but unfortunately there can be
government without initicitive.
The primary aims of. government should be two: security and justice. These are things of the
utmost importance to human happiness, and they are things which only government can bring
about. At the same time, no one of them is absolute: each may, in some circumstances, have to
be sacrificed in some degree for the sake of a greater degree of some other good.
Security, in the sense of protection of life and property, has always been recognized as one of
the primary purposes of the State. Many States, however, while safeguarding law-abiding
citizens against other citizens, have not thought it necessary to protect them against the State.
Wherever there is arrest by administrative order, and punishment without due process of law,
private people have no security, however firmly the State may be established. And even
insistence on due process of law is insufficient unless the judges are independent of the
executive. This order of ideas was to the fore in the seventeenth and eighteenth centuries,
under the slogans 1iberty of the subject and rights of man. But the liberty and the
rights that were sought could only be secured by the State and then only if the State was of
the kind that is called Liberal.
LEGAL LANGUAGE AND LEGAL WRITING 217

Justice, especially economic justice, has become, in quite recent tinnes, a governmental
purpose. Justice has come to be interpreted as equality, except where exceptional merit is
thought to deserve an exceptional but still moderate reward. Political justice, i.e. democracy,
has been aimed at since the American and French revolutions, but economic justice is a newer
aim, and requires a much greater amount of governmental control. It is held by Socialists to
involve State ownership of key industries and considertble regulation of foreign trade.
Opponents of socialism may argue that economic justice can be too dearly bought, but no one
can deny that, if it is to be achieved, a very large amount of State control over-industry and
finance is essential.
- Bertrand Russell

Give one-word substitutes:

1. Killing of a man. 9. Twist any thing out of its natural shape or


position.
2. Incapable of being read.
3. An accident or disease that ends in death. 10. Proper or qualified to be selected.
4. One who cannot read or write. 11. A complicated state of affairs that brings all
action or progress to a standstill.
5 A partner in crime or guilt.
6 Settlement of dispute by a person chosen 12. A malicious oral utterance to damage
by the parties. someones reputation.
7. One who commits the flirst act of attack or 13. Having no bearng upon the subject.
hostility.
14. One who easily believes.
8. To violate the sacred character of anything. 15. One who faces a criminal charge.

Chose from the following list:

1. homicide 4. distort 7. irrelevant 10. slander 13. accomplice


2. accused 5. arbitraton 8. deadlock 11. illiterate 14. aggressor
3. eligible 6. illegible 9. fatal 12. credulous 15. desecrate

Answers:

Q 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

A 1 15 10 9 6 2 13 11 3 12 4 14 5 7 8
218 WRITING IN GENERAL

LETTER WRITING
Letter writing is one of the indispensable skills which every educated person should possess. One
should know how to write a clear and readable letter. Everyone has at some time or the other to
write a business letter of some sort, and may have to face the problem of writing an important
letter that will vitally affect his interests in life. Therefore, Wren and Martin point out that art of
letter-writing is, therefore, no mere ornamental accomplishment, but something that every
educated person must acquire for practical reasons.

1. THE FORM OF LETTERS

A letter is a communication between its writer and its reader. Though a communication need not
be in any particular form, certain letter-forms have been established by experience and custom as
the most useful forms and neglecting them is a sign of ignorance and carelessness.
There are several different kinds of letters (such as friendly letters, business letters, etc.) each one
having its own particular form. But there are certain matters of form which apply to all, and these
may be explained first. In all kinds of letters there are six points of form to be attended to, namely:
1. The Heading consisting of
(a) the writers address and
(b) the date on which the letter is signed
2. The courteous Greeting or Salutation.
3. The Communication or Message-The body of the letter.
4. The Subscription, or courteous Leave-taking, or Conclusion.
5. The Signature.

1. The Heading: The position of the heading is the top right-hand corner of the first page the
address above and the date just below it, e.g.,
24, Mangalwar Peth
Tilakwadi,
BELGAUM 590 001
10 October 2002
The date may be written in any of the following ways:

4 April 2002 or 4th April 2002 or April 4, 2002

However, if you are writing date in DD MM YY or DD MM YYYY format, you must remember
that Americans use MM DD YY or MM DD YYYY format of writing dates. Thus,

}
4-6-1998 To a British person this means the fourth of June
4.6.1998 To an American it the sixth of April
4/6/1998

The date on the letter indicates the date on which it ws signed. If the letter is posted on some other
date that date should be indicated below the date of signing, as shown below
24-10-2002
26-10-2002
LEGAL LANGUAGE AND LEGAL WRITING 219

2. Salutation or Greeting: The position of the Salutation is at the left-hand of the first at a lower
level than the Heading. Salutation is the title given to the person to whom you are writing, and its
form depends upon the relation between the writer and the addressee.
To members of your family, for example, it will be
Dear Father, My Dear Mother, Dear Uncle, Dear Hari, etc.
To friends, it will be
Dear Shri Desai, or Dear Desai, or Dear Ramchandra, etc.
To business people, it will be
Dear Sir, Dear Sirs, etc.
The use of the term Dear is purely formal, and is a polite expression, not necessarily implying any
special affection.

3. The Communication or Body of the Letter: This is the main portion of the latter, and contains
the information or message which the writer wishs to communicate. The style in which it is
written will depend upon the kind of letter. The style of a letter to an intimate friend will be quite
different from that of a purely business/professional letter or an official communication. But
following points apply to all letters:
1. The various topics should be arranged in the order of their importance without overlooking
the logical order. Each topic should have its own separate pargraph.
2. A letter should be written in simple and direct language and short sentences should be used.
3. The message should be complete. If one has to add postscripts at the end of a letter, that is a
sign of slovenly thining. One has to think out what he wants to say before he begins to
write. Opening paragraph of a reply should summarize very briefly the contents of the letter
to which this reply is being given.
4. Write neatly. The correspondence should be legible. There is a difference between beautiful
handwriting and legible handwriting. A beautiful handwriting is not necessarily legible.
The reader should not have trouble to read the letter.
5. Mind your punctuation, and put in commas and semicolons and fullstops in their proper
places. Incorrect punctuation may alter the whole meaning of a sentence.
6. Any document enclosed should be mentioned in the body of the letter and noted in the
margin.

4. The Subscription, Complimentary Close, or Courteous Leave-Taking: A letter must not end
abruptly, simply with the writers name. This would look rude. So certain forms of polite leave-
taking ate prescribed. Such as
Yours sincerely, Your sincere friend, Yours faithfully, etc.
Different leave-taking forms are used in different kinds of letters. Leave-taking or complimentary
close consists of a phrase expressing respect, obedience or regard. It must be written below the last
words of the letter, and to the right side of the page. This is the traditional method. Note that today
there is a growing tendency to place the subscription on the left side.
The first word of the Subscription must begin with a capital letter; e.g.,
Sincerely yours
220 WRITING IN GENERAL

5. THE SIGNATURE OR NAME OF THE WRITER: This must come below the
Subscription. Thus:
Yours sincerely,
K.R. Deshpande
In letters to strangers, the signature should be clearly written, so that the reader may know whom
to address in reply.
A woman should prefix to the name Miss or Mrs (or; Kumari or in brackets. Ms. can be used by a
woman who does not wish to be Miss or Mrs).
Yours faithfully,
(Mrs.) J.L. Desai
Always use the same form of signature. The same individual should not sing John Smith once and
J. Smith at another. A person possessing authority to sign on behalf of another person of firm is
said to possess a power to sign per procurationem, i.e., as a representative of another. He should,
in such a case, prefix to the name of the individual or firm for whom he is acting the letter p. p.,
and then sign his own name. as for example,
p.p. Wilson Bothers,
Thomas Brown

TO SUM UP
In writing a letter, first write your address and under it the date in the top right-hand corner of
the first page.
Then write the Salutation (e.g., Dear Shri Desai) lower down at the left side of the page,
beginning with a capital and putting a comma after it.
Next begin your letter (with a capital letter) on the next lower line, to the right of the
salutation.
At the end of the letter write the Subscription, or words of leave-taking (e.g., Yours sincerely),
at the right side of the page, with your re below it. For example,

16 Roy Road,
Tilakwadi,
BELGAUM 590 006

4 October 1998
Dear Sir,
I shall be much obliged if you send me as soon as possible the
books which I ordered a week ago.
Yours faithfully,
Ramesh Kulkarni

2. CLASSIFICATION OF LETTERS
LEGAL LANGUAGE AND LEGAL WRITING 221

Letters may be classified according to their different purposes. Thus :


(1) Social Letters, including Friendly Letters and Notes of invitations.
(2) Business Letters; including Letters of Application, Letters to government officers and Letters
to Newspapers.

1. SOCIAL LETTERS

(a) FRIENDLY LETTERS: Letters to relations and intimate friends are informal letters, and
should be written in an easy, conversational style. They are really of the nature of friendly chat.

Forms of address: In friendly letters to relations and intimate friends, the proper form of address is
the name (without title) of the person to whom you are writing, prefixed by such qualifying terms
as Dear, My dear, Dearest, etc. For example :

Dear Father or Mother, Dear Brother, Dearest Sister, Dear Edward, My dear Abdul, etc.

But if you are writing to an ordinary friend who is much older than you are, or of superior rank, it
is respectul to use a prefix like Mr., Mrs, Shri, Smt. etc. e.g. Dear Mr Krishna Rao. (N.B.:
Students writing friendly letters to their teachers or professors, should always address them thus).
The forms of subscription are varied. The following can be used in letters to relatives and near
friends: Yours affectionately, Your affectionate (or loving) son, or brother or friend, Yours very
sincerely (to friends) ; or you can use some such form as this:

With love and best wishes,


From your affectionate friend,
Ahmad Hassan

In concluding letters to friends or acquaintances whom you address as Shri or Mr. (e.g., My
Dear Shri Durga Prasad) you should use the word sincerely or very sincerely, in the subscription;
and this may be preceded by With kind (or very kind or kindest) regards. Thus:

With kind regards,


Yours sincerely,
Chaman Lal

(N.B.: Sincerely should not be used in letters beginning with the foral Dear Sir, after which the
proper word of subcription is faithfully or truly.)

(b) NOTES OF INVITATIONS: A formal invitation is generally written in the third person, and
should contain no heading, no salutation, and no complimentary close. The writers name should
appear in the body of the letter. The address the writer and the date should be written to the left,
below the communication.

The reply to such a note should also be in the third person, and should repeat the date and time
mentioned in the invitation.
222 WRITING IN GENERAL

[Formal note of invitation]

Mr and Mrs V.A. Paul request the pleasure of Mr K. GopaIan's company at er on Friday, 14 July,
at eight oclock.

18 Peters Road
Chennai 600 014

[Formal note of acceptance]

Mr K. Gopalan has pleasure in accepting the kind invitation of Mr and V.A. Paul to dinner on
Friday, 14 July, at eight oclock.

12 Kamaraj Salai
Chennai 600 005

[Formal note of refusal]

Mr K. Gopalan regrets that a previous engagement prevents his accepting the invitation of Mr. and
Mrs. V.A. Paul to dinner on Friday, July.

12 Kamaraj Salai
Chennai 600 005

2. BUSINESS LETTERS

Business letters should be terse, clear, and to the point. Businessmen are busy men, and have no
time to read long, rambling and confused letters.

Business letters are naturally much more formal in style than friendly letters. Certain forms of
polite expression are used, such as -

I shall be much obliged if you will send me,


"Please despatch at your earliest convenience, etc.

At the same time certain phrases of business jargon should be avoided. They are commonly
used, but are not good English; and the meaning can be conveyed as clearly in simple, everyday
language. Examples of such expressions are -

Yours of even date to hand.


Despatch same at once.
Avoid so far as possible abbreviations (like advt. for advertisement exam. for examination, etc.)
and the omission of I or we (e.g., Have received instead of We have received).
In business letters ordering goods, care should be taken to give clear and exact descriptions of the
articles wanted. An itemized list of the goods wanted should be supplied, with the quality and
quantity required.
LEGAL LANGUAGE AND LEGAL WRITING 223

Directions for forwarding should be given (by rail, post, etc.) and the manner in which payment
will be made indicated (by Money Order, V.P.P., cheque, or by debiting to the writers account).
Everything should be clear and precise.
FORM The form of business letters is the same as already described, with one addition, viz., the
Address (i.e., the name of the firm or businessman to whom the letter is addressed), which should
be written on the first page, lower down than the Heading and to the left of the page. (It may be
placed at the end of the letter lower than the signature and at the left side of the page, but the usual
position is at the beginning.)

MODES OF ADDRESS The modes of address vary.

(1) To a tradesman:
Shri B.N. Rao
Bookseller
12 Ring Road
Bangalore
Begin Dear Sir, and conclude Yours faithfully.

(2) To a firm:
Messrs K.R. Das & Co.
Tea Merchants
24 Ring Road
Calcutta
Begin Dear Sirs, and conclude with Yours faithfully.

Note: If the firm has an impersonal title, Messrs should not be prefixed. For example:

Eurasia Publishing House, Vijay Trading Co.

(3) To professional men or private gentlemen:


Mr. K. Bhaskar
Chartered Accountant
Pratibha House
Thiruvanthapurani 695 002

Mr. K.R. Misra


32 Bhandarkar Road
Pune 411004

Begin Dear Sir or My dear Sir, and conclude Yours faithfully, Yours truly, etc. (not Yours
sincerely).
When a clerk signs a business letter on behalf of his employer, he puts the letter p.p. (Latin per
pro on behalf of) or for before the name of the firm, and writes his signature beneath. For
example:
Yours faithfully
forR. Gomes & Sons
K.S. Kumar
224 WRITING IN GENERAL

If a gentleman is entitled to be called Honourable, he is addressed, for example, as The Hon. Shri
KR. Patil.
(N.B.: The title The Hon. cannot be used by itself; you must not write The Hon. KR. Patil).

REPLIES: In replying to a business letter, always quote the number of reference (if there is one)
and the date of the letter you are answering. For example:

In reply to your letter No. 5021P, dated July 26, 19, I would like to say, etc.

LETTERS OF APPLICATION

A letter applying for employment should contain


(a) A short introduction stating whether the writer is answering an advertisement or is applying
on his own responsibility.
(b) A statement of his age, education and experience.
(c) A conclusion giving references, testimonials, or an expression of the applicants earnestness
of purpose.

Letters of application should be in the form of business letters.

LETTERS TO NEWSPAPERS
These should always be addressed to The Editor, and they usually end with Yours faithfully.
The form of Salutation is Sir, or Dear Sir.
If the writer gives his address for publication, it is often placed below the letter and to the left of
the signature.
If the writer does not wish his name to be published, he can sign his letter with a non-de-plume
(such as Interested, Anxious, who knows, etc.); but in any case he must give his name and
address (in a covering letter) to the Editor, for no respectable newspaper will publish anonymous
letters.
PART FIVE
LEGAL DRAFTING
CONVEYANCING
1. DEFINITION OF DOCUMENTS, INSTRUMENTS AND DEEDS
Document is any writing on any matter. Document is defined under section 3(18) of the General
Clauses Act, 1897. According to this definition, a document includes any matter written,
expressed or described upon any substance by means of letters, figures or marks, which is
intended to be used for the purpose of recording that matter.
All documents are not instruments. An instrument is formal legal writing. Instrument is defined
under section 2(14) of the Indian Stamp act, 1899. According to this definition, an instrument
includes every document by which any right or liability is created, transferred, limited, extended,
extinguished or recorded.
At common law, all instruments are not deeds. A deed at common law is a written contract or
agreement which has been properly signed under legal seal. However, in India, there is no
difference between a deed and an instrument.
Instruments may be unilateral (e.g., promissory note), bilateral (e.g., sale deed, gift deed, etc.) or
multilateral (e.g., partition deed, partnership deed, etc.).

2. DRAFTING OF DOCUMENTS
The person who drafts a deed is known as draftsman or conveyancer. A scribe only writes a
document, but does not draft it.
Before drafting a deed, the draftsman must know three important things:
1. The language in which the deed is to be written.
2. The transaction intended by the parties.
3. The law applicable to that transaction.
Therefore, drafting is usually done by advocates. At the time of drafting the advocate has to
carefully ascertain the competency of the parties to enter into that particular transaction. This
means two things:
1. Capacity of the parties to enter into that transaction, and
2. Authority of the parties to enter into that transaction.
Further, the advocate should not lose sight of the principles of construction of the documents. The
following are the main principles of construction of deeds:
1. The meaning of the deed is sought within the deed. The intention of the parties is
discovered from the language used by them.
2. Clear and unambiguous words prevail over the actual intention of the parities. The
question is not what the parties intended to do, but what they have actually done.
Therefore, the rights and duties of the parties are not to be decided from the title of the
deed, but from the actual matter of the deed.
But where the words are ambiguous, an effort may be made to find out the actual intention of the
parties.
3. Words are to be given literal meaning. Thus the meaning of words will be their dictionary
meanings and the meaning of the phrases and sentences will be according to the rules of
grammar.

227
228 LEGAL DRAFTING

4. While applying the literal meaning to the words, the conventions used by the parties shall
be considered. Thus, the habit of the parties of affixing a particular meaning to a particular
word, phrase or sentence cannot be overlooked. Similarly, technical words shall be given
technical meaning.
5. Extrinsic evidence can be used not for finding out the intention of the parties, but for
interpretation of the language.
6. The deed must be construed as a whole.
The advocate must be careful in properly describing all the facts, times and persons because of the
rules regarding exclusion of oral evidence by documentary evidence.
Section 91 of the Evidence Act excludes oral evidence to prove the terms of the document.
Section 92 excludes oral evidence to contradict, vary, add to or subtract from the contents of a
document which has already been proved.
Sections 93 and 94 of the Evidence Act excludes evidence to explain patent ambiguity. Section 95
permits extrinsic evidence to explain latent ambiguity.

3. Parts of Deeds
An instrument or a deed usually consists of three parts, namely
1. A non-operative part;
2. An operative part; and
3. A formal part.

THE NON-OPERATIVE PART


This part consists of the following components -
(a) Description of the name of the deed;
(b) Date of the deed;
(c) Parties to the deed; and
(d) Recitals

(a) Description or Name of the Document: It is a common part. But it is not a necessary to
begin a deed by giving it a name. The name, if given, has to be chosen with great care. The
name given should indicate the true nature of the contents of the deed. This is because
sometimes a deed is construed on its name. The description of the document is, however, is
not decisive by the terms of the deed and the nature of transaction has to be construed while
interpreting a document.

(b) Date of the Deed: It is a common practice to give the date on which a deed is executed either
after the name or at the end, before signatures. The date is stated thus:
THIS DEED OF SALE made on the fifth day of September one thousand nine hundred and
eighty nine (5th September 1989)

(c) Parties to the Deed: After the name and the date of the deed, the names of the Parties to the
deed are set out. The names and particulars of the Parties should be given in detail so that the
Parties can be easily identified. It is in common to describe the Parties by their names,
parentage, age, occupation and residence thus:
LEGAL LANGUAGE AND LEGAL WRITING 229

Shri ________ s/o ________, aged ________ years, occupation ________, resident of
________
In cases where it is intended that the successors of the Parties will also be bound by the deed, it is
usual to add a clause after the description of the Parties stating:
the Parties shall include their heirs, successors, assigns and legal representatives
Whenever companies, firms and minors are to be described, they are described in the following
manner:

Company : The Delhi Sugar Mills Co. Ltd., a Company registered under the Companies
Act, 1956 having its registered office at ___________, represented by its
Managing Directors.

Firm : M/s. Elnek Industries, a registered partnership form having its office at
______, by its Managing Partner

Minor : Shri ______ s/o. ______, aged ______ years, resident of ______, a minor
acting through Shri ______ s/o ______, aged ______ years, occupation ______,
resident of ______, his guardian appointed by the District Judge, Dharwad, by
Order dated ______

(d) Recitals: Recitals are the facts narrating of what has led to the necessity or desirability of
executing the deed or document. They contain a brief history for making the deed. Recitals
begin with the familiar word:

WHEREAS, the Parties ........

Recitals show the reasons and the history of the title designed to show that the landlord is having
the right to dispose of the property.

OPERATIVE PART

This part contains the following components -


(a) Testatum or the Premises;
(b) Habendum;
(c) Exceptions and Reservations; and
(d) Covenants.

(a) Testatum or Premises: After the recital the operative part of the deed begins, generally, with
the words -

NOW THIS DEED WITNESSES THAT ........


This part gives effect to the intention of the Parties and sets out every details of the transaction
between the Parties to the deed. It also sets out the various capacities in which the Parties to the
deed are acting, and the payment and receipts of consideration. In this part the property which is
subject of the deed is also described.
230 LEGAL DRAFTING

(b) Habendum: After testatum next follows the habendum. This part of the deed used to be
introduced by the words,

To have and to hold.......

The purpose of habendum is to define the interest conveyed and to set out the limitations on the
property involved. It shows whether the transfer is of a life interest or the creation of a trust or an
absolute sale. It also mentions whether the property is or not. Habendum is not an essential or
necessary part of a deed.

(c) Exceptions and Reservations: In this part of the deed all the exceptions and the reservations
which are intended to be attached to the transfer should be clearly stated. For example, if it is
desired to lease out a parcel of land, the transferor may desire to retain the right to extract
minerals therefrom, or again a person may reserve right to pass rain water over the land
demised, all such exceptions and reservations must be clearly set forth in this part of the deed.

(d) Covenants: Almost every document, whether a sale, lease or mortgage, must contain terms
by which the Parties bind themselves. It is not necessary to mention such covenants as are
attached by law to a particular transaction, but if any special terms or agreements are made at
variance with the implied covenants, then these must be clearly stated. For instance, a lease
under the Transfer of Property Act implies a right to sublet, but the Parties may impose
conditions against subletting. In such a case, the terms and conditions must be clearly stated.

THE FORMAL PART


This part consists of the following components:
(a) Testimonium Clause;
(b) Signatures and Attestation; and
(c) Description of the property.

(a) Testimonium Clause: This part of the deed sets forth the fact that the Parties have signed the
deed. It usually begins with the words -

IN WITNESS whereof the Parties aforesaid, namely, ______, have the day and year first
above mentioned put their signatures in the presence of the witnesses.
If the date of execution is not given in the beginning, then it is to be given in this part.

(b) Signatures and attestation: Immediately following the testimonium clause the Parties put
their signatures. Thereafter, the witnesses put their signatures. If the deed requires attestation
then the executant must sign in the presence of the witnesses and the witnesses must sign in
the presence of the executant.

(c) Parcels or Demise of Property: The property is described in detail, accurately and correctly
either at the foot of the deed or in the schedules annexed to the deed. The object of the
description is to make the property easily identifiable.
LEGAL LANGUAGE AND LEGAL WRITING 231

4. TRANSFER OF PROPERTY

Definition of Transfer of Property

Section 5 of the TP Act defines Transfer of Property as an act by which a living person conveys
property, in present or in future, to one or more living persons, or to himself, or to himself and one
or more other living persons.
Therefore the both the parties must be 'living' 'persons'. They may be natural persons or artificial
persons.
There must be conveyance of property. However, the TP Act governs only five kinds of transfer:
sale, mortgage, lease, gift and exchange.
Section 6 says that property of any kind may be transferred, except the ones mentioned under that
section.

Essentials of Valid Transfer of Property

There are six requirements of valid transfer of property:


1. The property must be transferable (sec. 6)
2. The transferor must be competent to transfer (sec. 7)
(a) major
(b) sane
(c) not otherwise disqualified from entering into contract
(d) having authority to transfer the property
(i) owner of the property
(ii) agent of the owner of the property
(iii) any other legal authority to transfer the property (e.g., Karta of JHF, guardian
of a minor, motgagee)

3. The transferee must be competent to take transfer of the property.


(a) Even a minor can be transferee where he does not have any obligations towards
the transferor under the transfer of property. Thus a minor can be purchaser or
donee, but cannot be a lessee or usufructuary mortgagee.
(b) He should not be disqualified from taking the transfer. Under section 136 of the TP
Act, judges, advocates and other officers of the Court are disqualified from
purchasing any actionable claim. Similarly, under O. XXI, R. 73 of CPC which
disqualifies the officers of the Court from bidding for a property at a Court
auction, and to acquire or attempt to acquire any interest in such property.
4. Consideration and object of the transfer must be lawful.
(a) It is not forbidden by law.
(b) It is not of such nature that, if permitted, it would defeat the provisions of any law.
(c) It is not fraudulent.
(d) It does not involve or imply injury to the person or property of another.
(e) It is not immoral or opposed to public policy.
5. The transfer must not be opposed to the nature of the interest affected thereby.
232 LEGAL DRAFTING

(a) res communes (things which belong to the entire community, not to any
individual) such as light, air, water of a river or sea.
(b) res extra commercium such as things dedicated to the public or religious use.
6. It must fulfil the requirements as to formalities laid down under the Act.
(a) Writing
(b) Signatures of the parties
(c) Attestation by the witnesses
(d) Registration (wherever necessary)

Attestation: To attest a document means to authenticate the signature of the executant of the
document by putting down his own signature on it as a witness to the execution. Therefore this
means two things:
1. Just because a person attests the document he does not become a witness to the
transaction made through that document.
2. The attesting witness should not be a party to the document.
The following are the requirements of a valid attestation:
1. There must be at least two attesting witnesses where attestation is compulsory.
2. Each witness must
(a) see the executant sign the document, or
(b) receive from the executant a personal acknowledgment of the signature.
3. Each witness must sign the document in the presence of the exeutant.

5. REGISTRATION OF DEEDS
Documents, Registration of Which is Compulsory
Section 17 of the Registration Act provides that the following documents must be registered
compulsorily.
1. Gift Deeds in respect of immovable properties.
2. Deeds transferring any immovable property of value of Rs. 100 or more.
3. Any receipt acknowledging payment of consideration in respect of such transfer.
4. Any lease deed if the lease is
(a) from year to year basis
(b) for more than one year
(c) reserves yearly rent,
5. Decrees having effect of transfer of immovable property of Rs. 100 or more.

Documents, Registration of Which is Optional


Section 18 of the Registration Act provides that the following documents may be registered at the
option of the parties.
1. Deeds transferring movable property.
2. Non-testamentary instruments transferring immovable property of value less than Rs. 100.
3. Any receipt acknowledging payment of consideration in respect of such transfer.
4. Any lease deed other than the ones mentioned under section 17.
5. Decrees having effect of transfer of immovable property of value less than Rs. 100.
6. Wills.
LEGAL LANGUAGE AND LEGAL WRITING 233

Conditions for Presentation

There are three important conditions for presentation of document for registration
1. The document must be
(a) in a language known to the registering authority, or
(b) in language normally known in the district in which it is to be registered, or
(c) must accompany a true translation of the document in English.
2. If any interlineations, blanks, erasures, or other alterations are present in the document,
the same must be attested by the executants.
3. If the document is in respect of any immovable property such immovable property must
be sufficiently described in the document.

Place of Registration
Documents in respect of immovable properties must be registered at the place at which the
immovable property or any part of the immovable property is situated.
Documents in respect of movable properties may be registered at the place where the document is
executed or at any other place in the same state where all the parties to the document consent for
the registration of the document.

Time of Registration
The document must be registered within four months from the date of its execution.
Where the document is executed by more than one person at different times, the document may be
registered with respect to each such execution within four months from the date of respective
execution.
Where the document is executed outside India, the document may be registered in India within
four months from the date on which it was brought into India.
Registrar has the discretion to condone delay of up to four months in registration.
Wills and authorities to adopt may be registered at any time after their execution.

Who May Present Document for Registration


A document may be presented for registration by the executant or his agent and after the death of
the executant, by his legal representative. A document may also be presented by the assignee of
the document.
A power-of-attorneyholder of the executant may also present the document for registration.

Effect of Registration
Registration of a document gives it legal sanctity. However, the document comes into existence
not from the date of its registration but from the date of its execution.

Effect of Non-registration
If a document which must be registered compulsorily under section 17 of the Registration Act is
not registered, it cannot be accepted in evidence.
234 LEGAL DRAFTING

FORMS OF CONVEYANCING
NOTICES
Notice means to bring certain facts to the knowledge of another person. There are three types of
notice:
1. Ordinary Notice
2. Legal Notice
3. Statutory Notice
Ordinary notice is issued by any person to another person to bring certain facts to the knowledge
of that other person, and to make a claim based upon those facts.
Legal notice is issued by an advocate on behalf of his client to another person. In that notice, the
advocate clearly brings out the facts leading to certain claims on the part of his client against the
person to whom the notice is issued, and mentions the claims in clear and unambiguous manner.
He then calls upon the person to whom the notice is issued to fulfil the claims made by the client,
and warns that if the claim is not satisfied, he will advise his client to approach a court of law for
enforcing the claim.
Statutory notice is issued where the person against whom the claim is sought to be enforced is
government or a public servant. It is issued under sec. 80, CPC. The notice shall state the
following particulars:
1. The cause of action.
2. The name, description and residence of the plaintiff.
3. The relief which is sought to be claimed.
Minor defects in issuing notice such as misdescription of the person to whom the notice is
addressed are viewed seriously, and merely because of such defects the notice does not become
bad in law.
The notice shall be delivered to the public officer himself directly or may be left at his office. In
case of cases against the government, the notice shall be delivered to the following officers or may
be left at their offices:
1. In case of Central Government (except against the Railways), a Secretary to the Govt.
2. In case of the Railways, the General Manager of the concerned Railways.
3. In case of a State Government (except Jammu and Kashmir), a Secretary to the
Government or the Collector of a District.
4. In case of State of Jammu and Kashmir, the Chief Secretary to the Government or any
other officer designated by the Government.
The plaint should contain a statement to the effect that such a notice was served.
This provision is made for the purpose of avoiding unnecessary litigation to which the public
officers or government may be exposed. Because if the government or public officer is involved in
litigations, he will be engaged in courts and his services to the public will be hampered. Further
public money will be wasted in such litigations. If unnecessary litigations are avoided, public
money will be saved and the same may be used for works of public importance. The idea behind
the section is, therefore, to provide an opportunity to the government to rectify their errors, and
settle the case before it goes to the Court.
This provision is mandatory and there was no exception to it under the original enactment. This
worked difficulties to the public in many cases.
LEGAL LANGUAGE AND LEGAL WRITING 235

Therefore, an amendment was carried out to section 80 by including an exception to the general
rule in cases where urgent and immediate relief is necessary. Accordingly, in such cases, with the
leave of the Court suits may be filed without issuing notice. However, relief can be granted by the
Court only after hearing the public officer or the government. After hearing the parties, if the
Court is satisfied that there is no necessity of urgent or immediate relief, the plaint shall be
returned to the plaintiff for presenting it after complying with the requirements of sec. 80.
It should be noted that the leave to file the suit without issuing the notice should be obtained
before filing the suit and not after filing the suit. If any suit is filed against the government without
issuing notice and when the government in its written statement objects to such filing, the leave
cannot be obtained. If leave is obtained after filing the suit, the leave is illegal and the suit is bad in
the eye of law.
However, notice under section 80, CPC, is necessary only in case of suits in respect of the official
acts of the public servants, and not in case of suits in respect of their private acts. Suits relating to
the private acts of the public servants can be filed like any other suits without issuing notice.

PROMISSORY NOTE
Promissory note is a negotiable instrument. A negotiable instrument is a document which entitles a
person to a sum of money and which is transferable from person to person by mere delivery or by
indorsement and delivery. A person to whom it is so transferred becomes entitled to the money
and also to the right to further transfer it.
A promissory note is an instrument in writing (not being a bank note or a currency note)
containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only
to, or to the order of a certain person or to the bearer of the instrument.
No particular form is required. However, the following are the essentials of a valid promissory
note:
1. It must be in writing.
2. It must be an unconditional promise to pay.
3. It must be in respect of a certain sum of money only.
4. The parties must be certain.
5. The promisor must sign the instrument.

ACKNOWLEDGMENT OF DEBT/LIABILITY
It is nothing but an admission of existing liability such as a debt.
Suit for enforcement of any liability may be filed within the period of limitation prescribed by the
Limitation Act, 1963. After the expiry of that period the suit is barred by limitation law. However,
if the person who has the liability acknowledges that liability in writing before the expiry of the
period of limitation, Sec. 18 of the Limitation Act provides for fresh period of limitation from that
date. The essentials of valid acknowledgment are:
1. It must be in writing and signed by the party.
2. It must be in respect of the liability in respect of a property or a right.
3. It must be made before the expiry of the period of limitation.
4. The words used must relate to a present subsisting liability and indicate existence of legal
relationship between the parties.
It is not necessary to make a promise that the liability will be discharged.
The document need not be attested and its registration is not compulsory.
236 LEGAL DRAFTING

SALE DEED

Sale is transfer of property for price. Sale of immovable property is governed by TP Act while sale
of movable property is governed by the Sale of Goods Act.

Essentials of a Valid Sale


1. Competent Parties:
(a) Seller
(i) Major
(ii) Sane
(iii) Not otherwise disqualified from entering into contract
(v) Having authority to sell the property
(b) Purchaser
Not barred from purchasing the property.

2. Transferable property
Not barred by section 6 of TP Act.

3. Consideration must be price, i.e., money only. If the consideration is not money but some
othervaluable consideration, the transaction is not sale, but exchange. In such case, even if a
part of the consideration is in terms of money, the nature of transaction does not become sale.

4. Formalities of sale:
(a) Where the property is tangible immovable property,
(i) if the value of the property is Rs. 100 or more, by a registered deed,
(ii) if the value of the property is less than Rs. 100, by a registered deed or by delivery of
possession.
(b) Where the property is intangible property, by registered deed irresepective of its value.

Sale and Agreement of Sale

Sale Agreement of Sale


1. There is transfer of property. There is no transfer of property.
2. If the buyer fails to pay price, seller may sue If the buyer fails to pay the price and accept
for price as well as for damages. the property seller may sue for damages
only.
3. If the seller fails to deliver property, buyer If the seller fails to deliver the property and
may file a suit for possession. complete the sale, the buyer may sue for
specific performance
4. The buyer becomes owner of the property. The seller remains owner of the property.
5. If the property is destroyed, buyer is put to If the property is destroyed, seller is put to
loss. loss.
LEGAL LANGUAGE AND LEGAL WRITING 237

Liabilities of Seller

A. Before Completion of Sale B. After Completion of Sale


1. to disclose defects in the property or in 1. to give possession
his title to the property 2. to covenant for title
2. to produce title deeds 3. to deliver title deeds on receipt of price
3. to answer questions as to title
4. to execute sale deed
5. to take care of the property
6. to pay outgoings

Rights of Seller

A. Before Completion of Sale B. After Completion of Sale


to rents and profits to lien (seller's lien)

Liabilities of Buyer

A. Before Completion of Sale B. After Completion of Sale


1. to disclose facts regarding the nature of 1. to bear loss to the property
sellers interest in the property which may 2. to pay outgoings
materially increase the value of the
property
2. to pay the price

Rights of Buyer

A. Before Completion of Sale B. After Completion of Sale


to lien (buyer's lien) to benefits of improvements, rents and
profits

DEED OF EXCHANGE
When two persons mutually transfer the ownership of one thing for the ownership of another,
neither thing being money only, the transfer is called an Exchange.
There only one difference between exchange and sale and that is in respect of consideration. In
case of sale, the consideration for transfer of property is money and only money. In case of
exchange the consideration is another property or another property and money. Therefore, the law
governing exchange is the same as the law governing sale under the TP Act.

MORTGAGE DEED
Mortgage is a transfer of interest in a specific immovable property for the purpose of securing
1. the payment of money advanced or to be advanced by way of debt,
2. an existing or future debt, or
3. the performance of an engagement which may give rise to a pecuniary liability.
238 LEGAL DRAFTING

Essentials of a Valid Mortgage


1. Competent Parties: Both mortgagor and mortgagee must be competent to contract, and the
mortgagor must have an authority to mortgage the property.
2. Transferable property
3. Lawful Consideration: mortgage money
4. Formalities of mortgage:
(a) Writing
(b) Signature
(c) Attestation
(d) Registration (Except in case of equitable mortgage)

Types of Mortgage
1. Simple Mortgage
2. Mortgage by Conditional Sale
3. Usufructuary Mortgage
4. English Mortgage
5. Equitable Mortgage (Mortgage by Deposit of Title Deeds)
6. Anomalous Mortgage

Rights of Mortgagor
1. to redeem
2. to inspection and production of documents
3. to lease mortgaged property

Liabilities of Mortgagor
Liabilities of mortgagor arise out of the following covenants:
1. for title
2. for defence of title
3. for payment of public charges
4. for payment of rent where the motgaged property is lease
5. for payment of interest on prior mortgage

Rights of Mortgagee
1. to foreclosure or sale
2. to sue for mortgage money
3. to exercise power of sale if given
4. to have a Receiver appointed
5. to accession to mortgaged property
6. to the benefit of the renewed lease
7. to spend money in certain cases
8. to proceeds of revenue sale or compensation on acquisition of the mortgaged property.

Liabilities of Mortgagee in Possession


1. to manage the property
2. to collect rents and profits to the best of his endeavours
3. to pay outgoings
4. to pay for necessary repairs of the property
LEGAL LANGUAGE AND LEGAL WRITING 239

5. not to commit any act which is destructive of the property


6. to apply insurance money in reinstating the property, or if the mortgagor so directs, in
reduction or discharge of the mortgage debt
7. to keep proper account of all receipts and payments

Once a Mortgage, Always a Mortgage


Once a transaction is entered into as a mortgage, it continues in the form of mortgage. Thus, in
case of a mortgage by conditional sale, if the parties agree that if the mortgagor does not repay the
money within a particular date, the sale becomes absolute, and if the mortgagor does not pay the
money within that date, the transaction does not become sale. It still continues to be mortgage, and
the mortgagor has a right to redeem it by repaying the debt. This right comes to an end only when
the mortgage is foreclosed by an order of the Court.

Clog on Redemption
Redemption being a valuable right of the mortgagor, it cannot be defeated by making it subject to
impossible conditions. Very difficult conditions are treated as impossible conditions for this
purpose.

Redeem Up, Foreclose Down


If A mortgages the property X to B, C, D, and E successively, C has the right to redeem B, D has
the right to redeem B or C or both, E has the right to redeem any or all of the prior mortgages. On
the other hand, D can foreclose E, C can foreclose D or E or both, and B can foreclose any or all of
the subsequent mortgages.

Marshalling of Securities
When the owner of two or more properties mortgages them to one person and then mortgaegs one
or more to another person, the subsequent mortgagee is entitled to have the prior mortgage debt
satisfied out of the property or properties not mortgaged to him.
For example, A mortgages properties X and Y to B, and then mortgages only X to C. B wants to
realise his debt by selling the properties mortgaged to him, C can compel B to first sell property Y.
If B's debt is satisfied by the proceeds of sale of Y, he cannot not touch X. But if the debt is not
fully satisfied by the sale of Y, B can sell X for the balance of debt and C cannot prevent him.

Charge and Mortgage


1. Mortgage is transfer of interest in property, charge is not.
2. Mortgage does not arise out of operation of law, charge does.
3. Mortgage can be enforced even if the transferee did not have notice of transfer, charge
cannot be enforced against bona fide transferee having no notice of charge
4. Mortgage must comply with procedural requirements given under TP Act. A charge
created by the act of the parties requires registration, but a charge arising out of operation
of law does not.

Types of Charge
1. Created by the act of parties
2. Arising by operation of law
240 LEGAL DRAFTING

Extinction of Charge
1. By release of the debt or of the security
2. By novation
3. By merger
(a) by the mortgage acquiring the equity of redemption
(b) by the mortgagor redeeming the mortgage
(c) by the purchaser of the equity of redemption redeeming the mortgage

LEASE DEED
Lease is the transfer of property whereby the transferor transfers to the transferee a right to enjoy
the property for a certain time.

Essentials of a Valid Lease


There 5 essentials of a valid lease. These are called 5 Ps.
1. Parties: Both lessor and lessee must be competent to contract. The lessor should have an
authority to transfer the property by way of lease.
2. Property: The property must be transferable.
3. Premium or rent: Premium is consideration for transfer of possession of the property. It is
paid in one instalment. Rent on the other hand, is paid periodically.
4. Possession: There must be transfer of possession of the property by the lessor to the
lsessee.
5. Period: The period of the lease must be specified in the lease deed.

Liabilities of Lessor
1. to disclose material defects in the property.
2. to put the lessee in possession of the property.
3. covenant for quiet enjoyment.

Rights of the Lessee


1. to enjoy accretion to the property.
2. to put an end to the lease in case of destruction of the property.
3. to make repairs to the property if the lessor neglects to repair, and deduct the expenses
from the rent.
4. to make payments obligatory on the lessor if lessor neglects to pay and deduct them from
rent.
5. to remove the fixtures after termination of lease.
6. to have benefit of all crops growing on the land planted or sown by him.
7. to assign his interest in the leasehold.

Liabilities of Lessee
1. to disclose facts materially increasing the value of the leased land.
2. to pay rent.
3. to maintain the property.
4. to give notice of encroachment.
LEGAL LANGUAGE AND LEGAL WRITING 241

5. not to commit waste.


6. not to build.
7. to restore possession.

Determination of Lease
1. By efflux of time fixed.
2. Where the termination of lease is conditional on happening of some event, on happening
of that event.
3. By termination of the lessors interest in the property.
4. By merger (i.e., lessee acquiring the lessorss interest in the property).
5. By express surrender.
6. By implied surrender
7. By forfeiture.
8. On the expiration of the notice to quit.

Tenat-at-Sufferance and Tenant Holding Over


On the determination of the lease, the lessee is bound to surrender the possession to the lessor. On
default, he may be ejected without notice. If a tenant continues to be in possession even after
termination of the lease, then:
1. he is called tenant-at-sufferance, if he so continues in possession without lessors assent,
2. he is called tenant holding over, if he pays rent and the same is accepted by the lessor,
thereby giving implied assent.
A tenant holding over is a statutory tenant. Statutory tenancy is not heritable.

Tenancy-at-Will
One of the essential elements of lease is period for which the lease is created. If a lease deed does
not mention this period, it is void lease. However, if the lessee has taken possession of the
property in pursuance of the agreement of lease, a tenancy at will is created.

DEED OF LICENCE
Licence is a right to enter upon the premises of another and use it while the premises still remains
in the possession and control of the owner.

Lease and Licence


1. Lease is a transfer of property, licence is not.
2. A lessee can sue a trespasser in his own name, whereas a licensor cannot.
3. A lease can be assigned, a licence cannot be.
4. A lease is heritable, a licence is not.
5. A lease cannot be revoked until the expiry of the term, a licence can be.

GIFT DEED
Gift is the transfer of certain movable or immovable property made voluntarily and without
consideration by one person to another.
242 LEGAL DRAFTING

Essentials of a Valid Gift


1. Parties: Donor must be competent to contract and should have the authority to transfer the
property by way of gift. The donee need not be competent to contract.
2. The property must be transferable and must be in existence.
3. The transfer must be voluntary and without consideration.
4. The donee must accept the gift during the lifetime of the donor and when the donor is still
competent to contract. If the donee is minor, his guardian may accept the gift on his
behalf, but the donee may relinquish the gift when he attains majority.
5. Formalities:
(a) The gift of an immovable property must be in writing (except in case of
Mohammedans)
(b) It must be signed by the donor.
(c) It must be attested by at least two witnesses.
(d) It must be registered irrespective of the value of the immovable property.

Gift of movable property need not be in writing, and as such other formalities are also not
applicable to such a gift. Though Mohammedans can make oral gifts of immovable property also,
if they reduce the same into writing in the form of a gift deed, all other formalities i.e., signature
and attestation and registration become applicable to it.

HIRE-PURCHASE

Hire-purchase is a form of hire contract where the hire is payable by installments and the hirer has
an option to purchase the goods or become the owner of the goods on making certain payments. It
is a process of purchasing or acquiring title to the goods through a hiring contract. A hire-purchase
agreement has two elements:
1. element of bailment;
2. element of sale in the sense that it contemplates an eventual sale when intending
purchaser fulfils the terms of the sale.
Difference between sale and hire-purchase is that in case of sale the property passes immediately
on payment of price, but in case of hire-purchase the property passes only when the option to
purchase is finally exercised.
Although under the Common Law contractual rights are not assignable, the hirer under a hire-
purchase agreement can lawfully assign his interest in Equity, the vendee taking the interest
subject to the terms and conditions of the agreement.

ADOPTION DEED
Adoption is creation of legal relationship of parent and child between the parties where no such
natural relationship exists. It is recognised by Hindus, Buddhists, Sikhs and Jains, but not by
Muslims, Christians, Parsis and Jews. Now it is governed by Hindu Adoptions and Maintenance
Act, 1956.
Parties: Natural father, natural mother, adoptive father, adoptive mother and adoptive child.
LEGAL LANGUAGE AND LEGAL WRITING 243

Essentials of Valid Adoption


1. The person adopting must have capacity and right to adopt (secs. 7, 8 and 11).
Capacity of Male Hindu to Adopt (sec. 7)
(a) He must be of sound mind.
(b) He must be major.
(c) If he has a wife living, her consent must be obtained, except where she
(i) has renounced the world
(ii) has ceased to be a Hindu
(iii) is of unsound mind
Capacity of Female Hindu to Adopt (sec. 8)
(a) She should be of sound mind.
(b) She must be major.
(c) (i) She should not be married, or
(ii) If she is married,
(a) her marriage should have been dissolved, or
(b) her husband
(i) has renounced the world
(ii) has ceased to be a Hindu
(iii) is of unsound mind
Further conditions as to capacity of a Hindu male or female are given under sec. 11.
(a) He/she should not have
(i) a Hindu son, son's son or son's son's son (by legitimate blood relationship or by
adoption) living, if the adoptive child is male.
(ii) a Hindu daughter or son's daughter (by legitimate blood relationship or by
adoption) living, if the adoptive child is male.
(b) If the person adopting is male and the child is female, the adoptive father must be at least
21 years older than the child,
and if the person adopting is female and the child is male, the adoptive mother must be at
least 21 years older than the child.
2. The person giving in adoption has the capacity to do so (sec. 9).
(a) He/she must be the father/mother or guardian of the adoptive child.
(b) If the father of the child is alive only he can give the child in adoption. If the mother of
the child is also alive, her consent is necessary, except where she
(i) has renounced the world
(ii) has ceased to be a Hindu
(iii) is of unsound mind
(c) Mother may give in adoption only if the father is dead or he
(i) has renounced the world
(ii) has ceased to be a Hindu
(iii) is of unsound mind
(d) Where both parents are dead or are of unsound mind, guardian (testamentary or
certificated) can give the child in adoption with the prior permission of the Court.
244 LEGAL DRAFTING

3. The person being adopted is capable of being taken in adoption (sec. 10).
(a) He/she must be a Hindu.
(b) He/she should not have been already adopted.
(c) He/she should not have been married (except where there is a custom to the contrary).
(d) He/she should not have completed the age of 15 (except where there is a custom to the
contrary).
4. The adoptive child must be actually given and taken in adoption.
Under the Old Hindu Law an orphan could not be adopted. Under the present law, an orphan may
be given in adoption by guardian.
Adoption once made cannot be revoked.

PARTITION DEED
Partition is the process of putting an end to joint ownership. It is effected by destruction of the
unities, i.e., unity of ownership and unity of possession.
A joint estate may be either a "joint tenancy" or a "tenancy-in-common".

Joint Tenancy
In case of joint tenancy there is unity of
(a) title;
(b) commencement of title;
(c) interest; and
(d) possession.
They have no definite interest in the property and none of them can transfer his share and on his
death his interest in the property does not devolve on his heirs but goes to the other survivors.

Tenancy-in-Common
When two or more persons get a property by transfer or inheritance they become tenants-in-
common. They have unity of
(a) commencement of title; and
(b) possession.
They have definite interest in the property and therefore, can transfer their shares though
undivided. On the death of a tenant-in-common, his share goes to his legal heirs.
Joint family is recognised only under Hindu Law. It is not recognised under Mahomedan Law or
any other law. Under Hindu Law, the property may be either ancestral property or self acquired
property. Property received by a Hindu by inheritance is his ancestral property. When a son is born
to him, that son gets an equal share in the property. Thus father and son will have shares in the
property and they are called coparceners. Such property devolves, upon the death of a coparcener,
on the other coparceners not by succession but by survivorship.
In Hindu Law partition does not mean simply division of the property into specific shares but it
also covers the division of title. Therefore, when there is a partition in the Hindu coparcenary
property, it involves severance of joint status as regarding the separating members with all legal
consequences resulting therefrom.
Partition of the Hindu Joint Family properties may be made either orally or in writing. If the
partition is in writing, it must be registered compulsorily.
LEGAL LANGUAGE AND LEGAL WRITING 245

PARTNERSHIP DEED
Partnership is the relation which subsists between persons carrying on a business in common with
a view to profit. It is a contract between two or more persons to invest their money and effects and
to utilise the labour and skill of some or all of them in lawful commerce or industry and to divide
the profits and share the loss in certain proportions. Thus, the relationship between partners arises
out of contract and not out of status.
The word "partnership" is defined under sec. 4 of the Partnership Act, 1932 as a relation between
persons who have agreed to share profits of business carried on by all or any one of them acting
for all. Partnership has three elements:
1. an agreement entered into by all persons concerned;
2. distribution of profits of the business;
3. management of the business by all or any one or more of them acting for all, i.e., mutual
agency.
One partner is not only a agent of the firm but also of the other partners and, therefore, can bind
others for the acts done by them. This is the most important element of the three, and distinguishes
partnership from other types of contractual relations between persons.
The persons who have entered into partnership agreement with each other are individually called
partners and are collectively called firm. The name under which their business is carried out is
called the firm name.
A firm must be registered under sec. 58 of the Partnership Act otherwise sec. 69 of the said Act
bars a suit filed between the partners or against a third party.

POWER OF ATTORNEY
Power of attorney is a document whereby one or more persons authorise, empower and constitute
another person to act, do and perform any act or acts which they are entitled to do, on their behalf.
The person who gives the authority is called the principal, and the person to whom the authority is
given is called the attorney.
A power of attorney may be a general power of attorney or a special power of attorney. A special
power of attorney gives the power to do certain specific act mentioned in the document, whereas, a
general power of attorney gives the power to do several acts, deeds or things mentioned in the
deed. In any case, the power of attorney must specifically mention and expressly state the
authority to be exercised by the attorney. Nothing which is not stated expressly or by necessary
implication in the power of attorney can be exercised by the attorney. The principal must further
state that he is bound by the acts of his attorney lawfully done under the power of attorney, as if he
has himself personally done that act.
Following are some of the forms of conveyancing.
246 LEGAL DRAFTING

AFFIDAVIT

Herein, I Shri ________ s/o ________, age ________ years, occupation ________,
resident of ________ do hereby state on solemn affirmation as under:

That, Master ________ is my eldest son, who was born on __________ at _________.
The delivery has taken place at ___________.

That, I could not inform the Registrar of Births about the date of birth, etc., within time
because I was medically disabled to travel. Therefore, the delay in informing the birth of my son
is not intentional but bona fide.

I state that ______th ______, 19__ is the date of birth of my son Master ______.

Therefore, for the bona fide reasons enumerated above, the delay may kindly be
condoned and the date of birth of my son Master ________ be registered in the Register of Births.

This affidavit is made to produce before the Registrar of Births, Belgaum Municipal
Corporation, Belgaum.

DEPONENT

I know the Deponent

(Name of the Advocate)

Advocate
LEGAL LANGUAGE AND LEGAL WRITING 247

AGREEMENT OF SALE

THIS AGREEMENT OF SALE made this ___th day of ______, 1989 BETWEEN Shri
______ s/o ______ age ____ years, Occupation ______, resident of ______ (who and his heirs,
and assigns are, unless the contrary appears, hereinafter called as Vendors) of the first part, AND
Shri ______ s/o. ______, age ____ years, Occupation ______, resident of ______ (who and his
executors, administrators and legal representatives or assigns are, unless the contrary appears,
hereinafter called the Vendee) of the second part.

WHEREAS, the vendor is desirous of selling and the vendee is agreeable to purchase a
house with open site situated in ______ (more specifically described in the schedule hereto),
belonging to the vendor for a sum of Rupees ______ only (Rs. ______) free of all encumbrances,
charges and liens whatsoever.

NOW THEREFORE THIS AGREEMENT WITNESSETH as under:

(1) That, the vendor shall sell free of all encumbrances, charges and liens whatsoever, his
dwelling house with open site situate at ______ bounded as below and the vendee shall buy the
same at the said price and condition.

(2) That, this agreement has been entered into by the vendee on the vendor holding out that
he, the vendor, is the absolute owner of the said house and open site with a subsisting right to
make transfer in the manner hereby contemplated and that the property is not in any manner
encumbered or charged with the payment of any money.

(3) That, the vendee has this day on the execution of this agreement paid the vendor a sum of
Rupees ______ only (Rs. ______) which constitute the consideration of this agreement and the
balance of the purchase price Rupees ______ only (Rs. ______), shall be paid by the vendee on or
before the expiry of two months from the date hereof, but subject to the conditions hereinafter
appearing.

(4) That, the vendor shall produce within one week from today all the title deeds pertaining
to the property intended to be sold for the scrutiny by the legal adviser to the vendee, and if the
said legal adviser does not find the title clear and subsisting this agreement shall be of no avail,
and the consideration of this agreement i.e. Rupees ______ (Rs. ______ only) acknowledged by
the vendor from the vendee today shall be refunded to the vendee without deductions whatsoever
and without any delay.
248 LEGAL DRAFTING

(5) That, on the vendee making available the balance of purchase price on or before the
stipulated period hereinabove mentioned a sale deed drafted by the said legal adviser of the vendee
shall be executed and registered by the vendor at the cost of the vendee. The sale deed shall
contain the usual indemnity clause of good and subsisting title and freedom from encumbrances,
etc.

(6) That, the vendor shall hand over all title deeds together with the latest receipts of tax
payment in respect of the property showing full payment up to the nearest financial year at the
time of or before registration of the sale deed.

IN WITNESS WHEREOF the said vendor Shri ______ and the said vendee Shri ______
have hereto signed and executed this agreement on the day and year first hereinabove written.

VENDOR

VENDEE

SCHEDULE OF PROPERTY

Residential House with built up area ___ sq. ft. and bearing Door No. ______ in Plot No.
____ measuring ___ ' EW and ___ ' NS situated at _________ and is bounded by following
boundaries:

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

VENDOR

VENDEE
LEGAL LANGUAGE AND LEGAL WRITING 249

DEED OF SALE

THIS DEED OF SALE made this ___th day of the month of _______, 19___, at
Belgaum BETWEEN the ______________ Co-operative Housing Society Ltd., Belgaum
represented by its Secretary, Shri ______ s/o ______ age ____ years, Occupation ______, resident
of ______ who is fully authorised this deed under resolution No. ______ dated ______ passed by
the Board of Directors of Society (hereinafter referred to as The Vendor, which expression shall,
unless it be repugnant to the context or meaning thereof, mean and include its administrators,
executors, assigns and successors-in-interest) of the one part AND Shri ______ s/o ______ age
____ years, Occupation ______, resident of ______ (hereinafter referred to as The Vendee,
which expression shall, unless it be repugnant to the context or meaning thereof, mean and include
his or her heirs, executors, assigns and successors-in-interest) of the other part.

WHEREAS the Vendor is a society registered under the Karnataka Co-operative


Societies Act, 1959 under Registration No. ______ formed among other objects for procurement
and allotment of house sites to its members.

AND WHEREAS, the Vendor Society has purchased the property bearing RS No.
______ measuring ___ acre ___ gunthas situate at ______ Taluka & District Belgaum, within the
jurisdiction of Sub-Registrar Belgaum, under a registered sale deed dated ___th day of
__________, 19___.

AND WHEREAS the said land has been converted to non-agriculture use by Order
bearing No. ________ dated ______ of the Deputy Commissioner, Belgaum and layout in respect
of said land, also been approved by the Director, Town and country planning vide No. ______
dated ______.

AND WHEREAS the Vendee is a member of the Vendor Society and his name has been
entered at Serial No. ___ in the Register of Members maintained by the Society;

AND WHEREAS the Vendee requested the Vendor Society to allot him by way of Sale
Plot No. ___ out of the said RS No. ____ fully described in the schedule herein below which
proposal was favourably considered by the Vendor and hence this sale deed executed.

NOW THIS DEED OF SALE WITNESSETH AS UNDER:

BY THIS DEED OF SALE the Vendor does hereby convey, transfer and assign unto the
Vendee by way of sale the said property for a consideration of Rs. _______ (Rupees __________
only), which amount has already been paid by the Vendee to the Vendor before execution of this
sale deed the receipt whereof has been separately acknowledged by Vendor Society.
250 LEGAL DRAFTING

The Vendor Society covenants with the member/purchaser as under:

(1) With the execution of this deed, all the right, title, interest, property claim and demand
whatsoever of the said Vendor into and upon the said property and every part thereof are conveyed
unto the purchaser and the purchaser shall thereafter peacefully HOLD, USE AND ENJOY the
said property forever subject to the terms specified in this sale deed.

(2) The Vendor Society, and all persons claiming under it shall from time to time upon the
request by the purchaser do and execute or cause to be done and exercise all such acts, deeds and
things whatsoever, for further and more perfectly assuring the said property and every part thereof
unto the purchaser and placing the purchaser in actual physical possession of the same according
to the true intent and meaning of these presentations as shall or may be reasonably required.

(3) The Vendor further declares that plot said hereunder is free from encumbrances, charges
etc.

(4) The Vendor shall indemnify the purchaser against all losses, damages, costs, expenses
which the purchaser may sustain by reason of any claim being made by anybody in respect of
arrears of taxes, etc. in respect of the plot sold hereinunder prior to this date.

(5) All further taxes, cesses including development and other charges etc. in respect of the
plot sold hereunder shall be borne by the purchaser.

The purchaser/member covenants with the Vendor Society to abide by the following
terms and conditions:

(1) The purchaser shall HOLD, USE AND ENJOY the said property as his whole and shall
use it for residential purpose only.

(2) The purchaser shall construct a residential building on the property within a period of
three years (3 years) from the date of this sale deed at his own costs in conformity with the plans
to be got approved by the purchaser from the concerned authority.

(3) The purchaser shall not convey, transfer, gift, mortgage or alienate the said property in
any other manner to any individual or group of individuals for a period of ten years (10 years)
from this date. However, the purchaser shall have the right of mortgaging of the said property to
any Scheduled Bank, Financial Institution, Karnataka Housing Board, Life Insurance Corporation
of India, Housing Development Finance Corporation or any other Government or Semi-
government Institutions for raising loan for construction of a residential building on the said
property. The purchaser before conveying, transferring or gifting the property obtain consent of
LEGAL LANGUAGE AND LEGAL WRITING 251

the society in writing and he shall not convey, transfer or gift the property to a person who is not
member of this Society.

(4) The purchaser shall abide by the rules and regulations framed by the Vendor Society
from time to time.

(5) The purchaser covenants that he shall be liable for violation of any of the terms of this
deed.

The terms of this deed are binding on the Parties hereto and their representative heirs,
executors, administrators, assigns and successors-in-interest.

IN WITNESS whereof the Vendor Society has executed this deed through the Secretary
mentioned above, the day the month and year first above mentioned at Belgaum.

Witnesses

1. ______________________ VENDOR

2. ______________________ VENDEE

SCHEDULE

All that piece and parcel of land bearing Plot No. _____ measuring ___acre and ___
guntas, RS NO. ______ situate at ______, Taluka and District Belgaum, beyond the limits of
Corporation of the City of Belgaum and beyond the Urban agglomeration is bounded as under:

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

Witnesses

1. ______________________ VENDOR

2. ______________________ VENDEE
252 LEGAL DRAFTING

LEASE DEED

THIS LEASE DEED is made on the ___th day of ___________ 19___ BETWEEN Shri
______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the
Landlord) of the one part AND Shri ______ s/o ______ age ____ years, Occupation ______,
resident of ______ (hereinafter called the Tenant) of the second part, WITNESSES that the
landlord does hereby demise unto the tenant, ALL that dwelling bungalow bearing Door No.
______, at ________, more specifically described in the schedule hereto, from the _______ day of
__________ 19___ for a term of ______ years, ensuing or yielding therefor during the said term
the rent of Rupees ______ only (Rs. ______) per month payment to be made on the tenth day of
each month according to the English Calendar AND the tenant does hereby covenants with the
landlord as under:

(1) That, the tenant shall pay the rent hereby reserved on the date hereinabove mentioned.

(2) That, the tenant shall have to paint the bungalow every year and expenses of painting
shall be borne by the tenant himself.

(3) That, the tenant shall keep the bungalow in a good condition and shall have to maintain
the garden therein. All the expenses of maintaining the building and the garden shall be borne by
the tenant himself.

(4) That, the tenant shall pay all the Municipal taxes electric consumption charges, water
charges hereinafter be payable in respect of the said bungalow.

(5) That, whenever any part of the rent hereinabove mentioned if is in arrears for one month,
the landlord may recover the demised bungalow on issuing a months notice and determine this
lease.

IN WITNESS WHEREOF, the Parties hereto have hereunder signed this deed on the day
and at the place hereinabove first mentioned.

Witnesses

1. ______________________ LANDLORD

2. ______________________ TENANT
LEGAL LANGUAGE AND LEGAL WRITING 253

SCHEDULE OF PROPERTY

Residential House with built up area ___ sq. ft. and bearing Door No. ______ in Plot No.
____ measuring ___ ' EW and ___ ' NS situated at _______ and is bounded by following
boundaries:

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

Witnesses

1. ______________________ LANDLORD

2. ______________________ TENANT
254 LEGAL DRAFTING

LICENCE

LICENCE is hereby granted by Shri ______ s/o ______ age ____ years, Occupation
______, resident of ______ (hereinafter called the Licensor) of the one part AND Shri ______
s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the
Licensee) of the other part, to occupy the rooms and the accommodation more specifically
described in the schedule hereto, in the house known as Ashirwad situate at ______ on the
following terms and conditions:

(1) That, the licensee shall pay licence fee of Rs. ______ for the period of ______ to ______
(One month) has been made today the receipt whereof licensor hereby acknowledges.

(2) That, the rooms and accommodation shall be used only for dwelling purposes, only by
the licensee.

(3) hat, the licensee shall keep the rooms and accommodation in a clean and sanitary
condition, and he shall pay the cost of making good any damages thereto caused by the negligence
or misuse of the premises by the licensee or any person on and in the premises as his guest, visitor,
relation or friend. If such costs are not paid by the licensee when demanded by the licensor in
writing, the licensor may deduct the same from the refundable security deposited by the licensee
with the licensor mention of which has been made in the paragraph 8 below.

(4) That, the main gate and entrance of the building shall be closed and locked each day at
______ PM and reopened each day at ______ AM and the key kept in custody of the licensor or
any person appointed by him in this behalf.

(5) That, the licensor shall pay all costs of electricity, water conservancy and taxes relating to
the building.

(6) That, the licensee may be cancelled on the breach of any condition by the licensee as
mentioned hereinbefore to be observed and performed by the licensee at the option of the licensor
by giving the licensee written notice of one month in advance.

(7) That, on the termination of the licence the licensee shall remove his goods in and upon
the rooms and accommodation and hand over the possession to the licensor, who shall refund the
security deposit minus any deductions which have been made in accordance with paragraph 3
above.

(8) That, the licensee has deposited by way of security the sum of Rupees ______ only (Rs.
______) only refundable on the expiry or sooner determination of the licence after such deduction
as may be permitted under this licence.
LEGAL LANGUAGE AND LEGAL WRITING 255

IN WITNESS WHEREOF the licensee and the licensor hereto signed at place , this
___th day of ________, 19___.

Witnesses
1. ______________________ LICENSOR

2. ______________________ LICENSEE

SCHEDULE OF PROPERTY LICENSED

Room No. ___ in Residential House Ashirwad with built up area ___ sq. ft. and bearing
Door No. ______ in Plot No. ____ measuring ___ ' EW and ___ ' NS situated at place and is
bounded by following boundaries:

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

Witnesses
1. ______________________ LICENSOR

2. ______________________ LICENSEE
256 LEGAL DRAFTING

SIMPLE MORTGAGE

THIS DEED OF SIMPLE MORTGAGE made this ___th day of _______, 19__
BETWEEN Shri ______ s/o ______, age ___ years, Occupation ______, resident of _______,
(hereinafter called the Mortgagor) of the one part AND Shri ______ s/o ______, age _____
years, occupation ______, resident of ______, (hereinafter called the Mortgagee) of the other
part, WITNESSES that in consideration of Rupees ______ only (Rs. ______) paid by the said Shri
______ to the said Shri ______ receipt whereof the said mortgagor hereby acknowledges. The
said mortgagor as beneficial owner hereby transfers unto the mortgages by way of simple
mortgage, the landed property bearing RS No. ____ of ________, more specifically described in
the schedule hereto AND IT IS HEREBY AGREED AND DECLARED that the said sum of Rs.
________ with interest thereon at the rate of ____% compounded _____, shall be repaid within a
period of ______ years from the date of this deed, AND further declared that in the event of
failure to repay the aforesaid sum by the mortgaged to be sold with a view to satisfy the claim and
if any amount remains unsatisfied the mortgagee shall be at a liberty to recover that remaining sum
from the mortgagor.

IN WITNESS whereof the said mortgagor and mortgagee have hereto signed at Dharwad
the day and the year first above mentioned.

Witnesses

1. ______________________ MORTGAGOR

2. ______________________ MORTGAGEE

SCHEDULE OF THE LANDED PROPERTY

Landed property bearing RS No. ______ measuring ______ acres, ______ guntas,
situated at __________ and is bounded by following boundaries:

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

Witnesses

1. ______________________ MORTGAGOR

2. ______________________ MORTGAGEE
LEGAL LANGUAGE AND LEGAL WRITING 257

USUFRUCTUARY MORTGAGE

THIS DEED OF MORTGAGE is made this _____th day of _______, 19___ BETWEEN
Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter
called the Mortgagor) of the first part AND Shri ______ s/o ______ age ____ years, Occupation
______, resident of ______ (hereinafter called the Mortgagee) of the other part.

WHEREAS, the said mortgagor, who is absolutely entitled to the property mentioned in the
Schedule below, is in need of money. The mortgagor has requested the mortgagee to advance a
sum of Rs. ___________ and the mortgagee has agreed to advance the above sum to mortgagor by
way of loan on the terms and conditions hereinafter appearing.

THIS DEED WITNESSES as follows:

(1) In consideration of a sum of Rs. ______/- (Rupees ______ only) borrowed by the
mortgagor from the mortgages (the receipt of which sum the mortgagor hereby acknowledges).
The mortgagor hereby transfers by way of usufructuary mortgage to the mortgagee THAT
property described in the schedule hereto to the intent that the said premises shall remain in
possession of the mortgagee as security for the repayment of the said sum of Rs. ______ in
accordance with the provisions hereinafter contained.

(2) The mortgagor hereby covenants with the mortgagee as follow -

(i) the said property hereby mortgaged is free from encumbrances.

(ii) All the rents and profits of the mortgage property collected by the mortgagee after
paying government revenue, municipal taxes, etc. be appropriated by the mortgagee
in lieu of the interest on the said sum of Rs. ______.

(3) The mortgagee hereby covenants with the mortgagor that the mortgagor may redeem the
aforesaid mortgage at any time after five years or repayment of the said sum of Rs. ______.

(4) It is hereby agreed between the Parties as follow -

(i) that, the Parties shall have all such rights and be subject to all such liabilities of the
mortgagor and mortgagee provided in the Transfer of Property Act 1882 as may be
applicable to them;

(ii) that, any rents of the mortgage property for the period of mortgage unrealised but
being legally recoverable on the date of redemption shall be purchased by the
mortgagor from the mortgagee at a price equal to 75% of the total amount of such
unrealised rents.
258 LEGAL DRAFTING

(iii) that, when the mortgagor redeems the mortgage, then the mortgagee shall, at the
requests and costs of the said mortgagor, reconvey and deliver the possession of
the mortgaged property to the mortgagor.

(5) It is hereby agreed that whenever such an interpretation as would be requisite in order to
give the fullest scope and effect legally possible to any covenant or any contract herein contained,
the expression (the mortgagor) and (the mortgagee) hereinbefore used include their respective
heirs, executors, administrators and assigns.

IN WITNESS WHEREOF the Parties hereto have hereunder put their signatures the day
and the year first above mentioned.

Witnesses

1. ______________________ MORTGAGOR

2. ______________________ MORTGAGEE

SCHEDULE OF PROPERTY

The following property is subject to usufructuary mortgage bearing CTS No. ______ and
situated at Hosyallapur, Dharwad and the same is bounded by the following boundaries

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

Witnesses

1. ______________________ MORTGAGOR

2. ______________________ MORTGAGEE
LEGAL LANGUAGE AND LEGAL WRITING 259

EQUITABLE MORTGAGE

THIS EQUITABLE MORTGAGE is made on ___th day of ________, 19___


BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______ of
the one part AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______
of the other part.

WHEREAS, the said Shri ______ has advanced to the said Shri ______ the sum of
Rupees ______ (Rs. ______), the receipt whereof the said Shri ______ has on various dates given
to the said Shri ______. NOW IN CONSIDERATION of such advances aggregating the aforesaid
sum of Rupees ______ only (Rs. ______) and for further securing the repayment thereof on
demand, with interest thereon at the rate of ____% per annum from the date hereof, the said Shri
______ has this day deposited with the said Shri ______ the deeds and documents pertaining to
his title to the house bearing No. ______ situated at ______ in the city of ______, belonging
absolutely to him and does hereby CHARGE the premises comprised in the said deed and
documents, the repayment of the said sum of Rupees ______ only with interest thereon at the rate
of ____% per annum such interest to be payable half yearly.

AND THIS DEED HEREBY AGREES AS FOLLOWS:

(1) That, if any interest remains unpaid for a period of more than 6 months from its accrual
or after the expiry of the period specified herein the said Shri ______ shall have the right to call in
or enforce payment of the sums due under this mortgage.

(2) That, Shri ______ shall repay the interest as stated above and on failure it shall be added
to the principle and such principle shall in any case be repaid.

(3) That, the said Shri ______ shall on demand by the said Shri ______ and at his cost
execute a simple mortgage of the property hereby mortgaged on the terms and conditions as to the
interest and manner of payment specified herein and such other conditions as may be imposed by
Shri _____.

IN WITNESS whereof, the said Shri ______ has hereto signed at ______ the day and
year first above mentioned.

Witnesses

1. ______________________ MORTGAGOR

2. ______________________ MORTGAGEE
260 LEGAL DRAFTING

EXCHANGE

THIS DEED OF EXCHANGE is made the ________ BETWEEN Shri ______ s/o
______ age ____ years, Occupation ______, resident of ______ (hereinafter called the First
Party) AND Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______
(hereinafter called the Second Party)

WHEREAS, Shri ______ is the absolute owner in possession of the house property
bearing CTS No. ____ situate at ____, more specifically described in Schedule A hereto AND
Shri _____ is the absolute owner in possession of the house property bearing CTS No. ______
situate at ______, more specifically described in Schedule B hereto.

AND WHEREAS, the properties mentioned in both the Schedules, A and B, are free
from all the encumbrances and charges whatsoever and each is of the value of Rupees ______
only (Rs.____) and Rupees ______ only (Rs. ______) respectively.

AND WHEREAS, the said Shri ______ and Shri ______ are desirous of mutually
transferring the said properties.

NOW THEREFORE THIS EXCHANGE WITNESSES that the said First Party hereby
transfers absolutely free from all encumbrances whatsoever, the house property mentioned in the
Schedule A hereto to the Second Party and the said Second Party, in consideration of the said
exchange hereby transfers absolutely free from all encumbrances whatsoever the house property
mentioned in Schedule B hereto to the First Party.

AND it is hereby declared that either Party will hold the properties transferred hereafter
as absolute owners thereof without any interruption from the other.

IT IS ALSO AGREED AND DECLARED that either Party hereto has power and
authority to give, grant, convey and sell the property mutually conveyed by this deed.

AND it is also agreed that either Party will at the request and cost of the other execute
every such assurance and do every such act, deed or thing for further and more perfectly assuring
to the other the properties hereby mutually conveyed.

That this deed shall be executed in duplicate and each document bears the registration
endorsements in full. The stamped document to be kept by Shri ______ and the duplicate by Shri
______.
LEGAL LANGUAGE AND LEGAL WRITING 261

IN WITNESS WHEREOF the said Shri ______ and Shri ______ have hereto signed at
____, on the day and the year first hereinabove mentioned.

WITNESSES

1. ________________________ FIRST PARTY

2. ________________________ SECOND PARTY

SCHEDULE A

The following property is subject to usufructuary mortgage bearing CTS No. ______ and
situated at Hosyallapur, Dharwad and the same is bounded by the following boundaries

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

WITNESSES

1. ________________________ FIRST PARTY

2. ________________________ SECOND PARTY

SCHEDULE B

The following property is subject to usufructuary mortgage bearing CTS No. ______ and
situated at Hosyallapur, Dharwad and the same is bounded by the following boundaries

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

WITNESSES

1. ________________________ FIRST PARTY

2. ________________________ SECOND PARTY


262 LEGAL DRAFTING

GIFT

THIS DEED OF GIFT is made this 16th day of September, 1989 BETWEEN Shri
______ s/o ______ age ____ years, Occupation ______, resident of ______ (hereinafter called the
Donor) of the one part AND Shri ______ s/o ______ age ____ years, Occupation ______,
resident of ______ (hereinafter called the Donee) of the other part.

WHEREAS the said donor is the absolute owner in possession of the lands, tenements
hereinafter more specifically described in the schedule hereto.

AND WHEREAS, the said Shri ______ is the donors cousin living with the donor since
the age of seven years and the said donor has great love and affection to dispose the said lands and
tenements in the manner hereinafter appearing.

NOW THIS DEED OF GIFT WITNESSES that in pursuance of the said indication and in
consideration of natural love and affection which the said donor has for the donee, the said donor
out of his own free will, without fraud, coercion or undue influence from anybody whatsoever and
in full possession of his senses does hereby give, convey, grant, transfer and conform on the said
donee the double storied house measuring 1500 sq.ft. with open site together with all outhouses,
garage and all privileges, profits, advantages and all other amenities whatsoever; TO HAVE AND
HOLD the tenements and the lands hereby gifted on to and to these of the said donee for ever and
absolutely.

AND THAT THE SAID DONEE shall and may from time to time and at all times
peacefully and quietly enter upon, have, hold, occupy, possess and enjoy the property hereby
gifted and receive and take the rents, issues and profits thereof and every part thereof without any
let or hindrance whatsoever from the said donor or by any person or persons claiming from under
or interested of him

IN WITNESS WHEREOF the said donor has hereunto set and subscribe his signature
and delivered in the presence of the day, month and year first above mentioned.

WITNESSES DONOR
1. ________________________

2. ________________________ DONEE
LEGAL LANGUAGE AND LEGAL WRITING 263

SCHEDULE OF PROPERTY GIFTED

(1) Double storied building bearing CTS No. ______ situated at ________ in the city of
______ having an approximate value of Rupees ______ only (Rs. ______)

(2) The landed property bearing RS No. ______ of ______ village, in Taluka ______ District
______ measuring about ____ acres and ____ gunthas and is surrounded by following boundaries:

towards East : _________________


towards West : _________________
towards North : _________________
towards South : _________________

WITNESSES DONOR
1. ________________________

2. ________________________ DONEE
264 LEGAL DRAFTING

WILL

THIS IS THE last will and/or codicils, if any, made by me at any time heretofore made
and declare this to be my will. It will be effective after my death. It is my wish and desire that
after my death my wife, Smt. ______, shall be entitled to all my estate and effects thereof
absolutely and for ever.

I, accordingly, declare her as the sole beneficiary and universal legatee of my this will.

I hereby leave, give, devise and bequeath absolutely and forever to my said wife, Smt.
______, her heirs, executors or administrators, for her use and benefit, absolutely and forever, all
my property, assets and credits, both moveable and immovable, of whatsoever character or
wheresoever situate including all reversion, expectancy and future assets, if any, acquired by me
and I hereby appoint her, the said Smt. ______, sole executrix of this my will who will be entitled
to obtain probate without being required to furnish any security. Dated this ______ day of _____,
19__.

In witness, I have hereunto set and subscribe my hand and signature this ______ day of
______, 19___.

WITNESSES TESTATOR

1. ________________________

2. ________________________
LEGAL LANGUAGE AND LEGAL WRITING 265

DEED OF ADOPTION

THIS DEED OF ADOPTION made this the ________ day of the ______ month of
________ year by Shri ________ s/o. Shri ________ age ____ years, r/o. ________ (hereinafter
referred to as Natural Father) of the first part AND Shri ________ s/o. Shri ________ age ____
years, r/o. ________ (hereinafter referred to as Adoptive Father) of the second part WITNESSES
AS UNDER :

(1) That Adoptive Father has no son or sons son or sons sons son living.

(2) That Adoptive Father, with the consent of his wife, has decided to take a boy in adoption
and requested the Natural Father to give his son Kum _______ in adoption to him. Natural Father
in consultation with his wife agreed to give the said Kum ________ in adoption to the Adoptive
Father.

(3) In pursuance of the above agreement the Natural Father has given said Kum ________ in
adoption to the Adoptive Father today the __th day of _____, 19__, after performing the necessary
religious ceremonies and the Adoptive Father has accepted said Kum ________ as his son.

(4) Adoptive Father has named Kum _______ as Kum _________ and from this day he shall
become a part of Adoptive Fathers family and shall have all the rights as if he is a natural son of
the Adotpive Father. He shall have no right in the properties of Natural Father.

IN WITNESS WHEREOF the Natural Father, the Adoptive Father and the Adoptive
Mother have signed this deed on the day and year hereinabove mentioned at ________.

NATURAL FATHER

ADOPTIVE FATHER

ADOPTIVE MOTHER
266 LEGAL DRAFTING

DEED OF PARTITION

THIS DEED OF PARTITION is made the ____th day of ______. 19__ BETWEEN Shri
______ s/o ______ age ____ years, Occupation ______, resident of ______ of the First Part AND
Shri _____ s/o ______ age ____ years, Occupation ______, resident of ______ of the Second Part.

WHEREAS, the Parties hereto being in possession as absolute joint owners in equal
shares free from all encumbrances whatsoever, the houses, garden, land and premises specifically
described in the schedule annexed to this deed, have agreed with each other to put an end to their
joint tenancy and to divide the properties contained in the said schedule for the purpose of the
same being separately and individually owned, possessed and enjoyed.

AND WHEREAS, the said Shri ______ of the First Part who assumed Kartaship of the
family now comprising of the Parties hereto, has rendered full account for the period beginning
with the date of demise of their father, i.e., ________ and no moneys claimed or charges due and
owing by any of the Parties hereto against him or any other co-sharer.

NOW THEREFORE THIS DEED OF PARTITION WITNESSES as under:

(1) That, it is mutually agreed that the properties moveable or immovable (as per the
schedule), subject of this partition are of the value of Rupees ______ (Rs. ______) only and the
value of the separated shares shall be Rupees ______ (Rs. ______) only each which shall be the
value for the purpose of stamp duty.

(2) That, the properties given in List A in the schedule shall belong absolutely to the First
Party and properties given in Lists B and C in the schedule shall belong absolutely to the Second
Party.

(3) That, the respective documents and deeds of title pertaining to the properties have been
handed over to their respective owners.

(4) That, this deed has been drawn up in duplicate and the stamped original shall remain with
Shri ______, while the duplicate bearing registration endorsements shall remain with Shri ______.

IN WITNESS whereof the Parties have hereto affixed their hand the day and the year
first above mentioned, at Dharwad.

WITNESSES

1. ________________________ PARTY NO. 1

2. ________________________ PARTY NO. 2


LEGAL LANGUAGE AND LEGAL WRITING 267

MEMORANDUM OF ORAL PARTITION

THIS MEMORANDUM OF PARTITION is drawn up on the ____th day of ______,


19__ and puts on record the partition effected BETWEEN Shri ______ s/o ______ age ____
years, Occupation ______, resident of ______ ; Shri ______ s/o ______ age ____ years,
Occupation ______, resident of ______.

WHEREAS, Shri _____ demised intestate on ____ - _____ - 19__, leaving behind him 3
sons named above, entitled to the properties, moveable and immovable, left by the said Shri ____.

AND WHEREAS, differences and disputes arose between the said three sons of Shri
______ and they approached Shri ______ s/o ______ resident of ______ to divide and distribute
the properties held jointly by them.

AND WHEREAS, the said Shri ______ on the __th day of ____, 19__ before the Parties
divided all the moveable properties in equal shares as per List A attached hereto and allotted the
first 10 items to Shri ______; the next 8 items to Shri ______ and the remaining 12 items to Shri
______ all of whom have accepted the said distribution.

AND WHEREAS, the said Shri ______ on the same day before the Parties divided the
entire house situated at ______ and bearing CTS No. ______ in the city of ______ and allotted the
portion marked in blue and coloured blue in the plan of Shri ______ and the portion marked in red
and coloured red in the same plan to Shri ______, and the small house situated at ______ was
allotted in its entirety of Shri ______.

AND WHEREAS, the Parties have accepted the said partition as final, conclusive and
binding upon them.

WHEREFORE this memorandum of Partition is drawn up before the Parties and the
arbitrator who have subscribed their signatures thereto in order to signify the correctness of the
facts mentioned above.

WITNESSES

1. ________________________ PARTY NO. 1

2. ________________________ PARTY NO. 2


268 LEGAL DRAFTING

DEED OF PARTNERSHIP

THIS DEED OF PARTNERSHIP made the ______ day of ___________, 19___


BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______
(hereinafter called the First Party) AND Shri ______ s/o. ______, age ____ years, Occupation
______, resident of ______ (hereinafter called the Second Party), whereby it is agreed as
follows:

(1) The Parties shall become and be partners under the firm name of M/s. ______ as from
the date ______ and shall carry on the business of ________.

(2) The duration of the firm shall be, to begin with, a period of ______ years or for such
further or lesser period as the Parties may choose to mutually agree.

(3) The registered office of the firm shall be at ______, or at such other place or places as the
partners choose to.

(4) The capital of the partnership shall be the sum of Rupees ______ only (Rs. ______) or
such other sum as the partners may mutually agree and shall be contributed by the partners
equally.

(5) The partners shall distribute the profits and bear the losses in equal shares.

(6) The partners shall be entitled to withdraw out of the profits money not exceeding Rupees
______ only (Rs. ______) in each month adjustable against the account of the respective partner at
the time of the annual accounting.

(7) The first Party shall make available to the firm the shop or premises in which the business
of the firm shall be carried on situate at ______ Road and which said shop or premises is in his
occupation as a tenant from month to month paying a monthly rent of Rupees ______ only
(Rs.____) to Shri ______ and shall hereafter shall hold the said shop or premises in trust for the
partnership for which he shall be paid out of the partnership, the said monthly rent of Rs. ______
as from the date mentioned in para one above.

(8) The said rent and all taxes, duties, repairs and outgoings in respect of the said shops or
premises or other place or places of business of the partnership shall be paid out of the partnership.

(9) No apprentice, clerk or servant shall be employed or dismissed without the consent of the
partners and all premises and fees taken or paid shall be the profits or expenses of the partnership.
LEGAL LANGUAGE AND LEGAL WRITING 269

(10) The partners shall cause all usual accounts and entries to be kept and made in proper
books and together with all securities, vouchers and such books shall be kept at the registered
office of the partnership and be open to inspection of each of the partners.

(11) Immediately after each ____ day of ____ in every year the partners shall take an account
and valuation of the effects, credits and the liabilities of the partnership. Such accounts and
valuation shall after mutual examination be drawn up in duplicate and signed by the partners, who
shall each retain a copy. The entries in such signed accounts shall be final and binding as between
the partners. The profit or loss, as the case may be, divided as aforesaid after signing of such
account.

(12) The authority of the partners individually shall be limited to the following:

a. No partner shall individually purchase goods for the partnership without consulting
the other and obtaining his consent to the purchases of the value exceeding Rs.
______ (Rupees ______ only).

b. No partner shall bind the partnership by taking any loan or raising any money,
whether with or without security to the extent of more than Rs. ________ (Rupees
______ only).

c. No partner shall commit the partnership without obtaining the written consent of
the other, to any undertaking which involves the partnership financially to the
extent or more than Rs. ____ (Rupees _______ only).

d. All law suits shall be filed and defended by the partnership by the partners acting
jointly in all cases which involve the partnership financially to the extent of more
than Rs. ____ (Rupees _______ only).

(13) The partnership shall be deemed to be continuing on the admission of a fresh Partner or
partners, provided the admission is on the terms herein laid down and is approved by all the
partners.

(14) Every partner shall be entitled to dissolve the partnership. The partnership shall be
dissolved by a notice in writing sent by registered post to the address herein given or such address
as may be registered from time to time with the Registrar of Firms.

(15) On the bankruptcy of any partner or on notice being given to either partner under clause
14 above or on the death and there being no major legal representative willing or capable to take
270 LEGAL DRAFTING

the place of the deceased partner, the partnership shall terminate. The share of such partner may
be purchased by the remaining partners by paying a value made by arbitrators or their umpire as
hereinafter mentioned, in three equal half yearly instalmants. The tenancy of the first Party shall
be valued at ____ years rental.

(16) Upon determination of the partnership by afflux of time or upon its determination by any
other means, if the option to purchase is not exercised by any other partner then as soon as
convenient a full and general account of valuation shall be taken of the property and the assets and
liabilities of the partnership and the property and assets shall be put to sale and the debts be
realised and credits be paid.

(17) If at any time any dispute, doubt or question shall arise between the partners, or their
representatives either on the construction of these presents or respecting the accounts, transactions,
profits or losses of the business, or otherwise in relation to the partnership, then every such
dispute, doubt or question shall be referred to arbitrators chosen by each of the partner and the
representatives or their umpire to be appointed in the manner provided by the law and such
reference shall, in all respects, as to the mode and consequence thereof conform to the provisions
in that behalf contained in the Arbitration Act, 1940, or any statutory modification thereof.

IN WITNESS whereof the said Shri ______ and Shri ______ have hereto at ______
signed the day and year first above mentioned.

Place:

Date: PARTY NO. 1

PARTY NO. 2
LEGAL LANGUAGE AND LEGAL WRITING 271

DISSOLUTION OF PARTNERSHIP

THIS DEED OF DISSOLUTION OF PARTNERSHIP made the ______ day of ______,


19__ BETWEEN Shri ______ s/o ______ age ____ years, Occupation ______, resident of ______
AND Shri ______ s/o. ______, age ____ years, Occupation ______, resident of ______.

WHEREAS, the partners hereto under a deed of partnership dated ______, made between
them formed themselves into a trading firm and carried on business under the name and style of
M/s. ______, pursuant to the covenants, stipulations and provisions contained in the said deed.

AND WHEREAS, it has been mutually decided between the partners that the said
partnership shall be dissolved and the said trade and business shall be wound up and the stock in
trade, assets and credits realised and called in, and the net proceeds, after payment and satisfaction
of all debts and liabilities divided between the partners according to the covenants in this behalf
appearing in the deed of partnership.

NOW THIS DEED WITNESSES that in pursuance of the said agreement it is hereby
declared and agreed by and between the Parties hereto as follows. That is to say,

(1) The said partnership between the partners hereto under the deed dated ______, hereunto
appended shall be determined and stand dissolved as from the ______ day of ______ 19____ and
the Parties hereto singly or jointly shall not carry on the business of the said firm or ______ under
the said name or style for a period of __ years.

(2) The Parties hereto shall on the aforesaid date of _____________ sign notices of
dissolution and forthwith advertise in the local official gazette the fact of dissolution as required
by Sec. 45 of Indian Partnership Act, 1932 and shall also intimate the fact of dissolution to the
Registrar of Firms under the provision of Sec. 63 of the said Act.

(3) Within __ days after the dissolution of the partnership a full and general account and
balance sheet shall be taken and made of the property, assets and liabilities of the partnership and a
full and particular inventory and valuation of all the machinery, plans, tools, utensils, stock in
hand, office equipment, materials and effects belonging to the firm shall be made by the Parties or
such other person as the Parties may choose to appoint, whose decision shall be final and binding
on the partners and all debts owing to the firm shall be collected and got in by the Parties or such
other persons as the Parties by instrument in this behalf appoint.

(4) That, as soon as may be, after the property, assets and liabilities have been got in and
disbursed, the Parties or such other persons whom the Parties may have appointed under the
foregoing clause shall divide and apportion the share of the Parties in the proportion of the
272 LEGAL DRAFTING

contribution of the Parties towards the capital. In such division any amount paid earlier or due to
the Parties according to the books of the partnership shall be taken into account. That, the cost of
liquidation proceedings shall also be deemed to be a liability of the partnership and paid from the
funds of the partnership.

(5) That, in case the winding up shows a loss or the assets of the partnership are insufficient
to meet the liabilities and debts of the partnership, then the partners shall forthwith pay such losses
in the proportion of their contribution to the capital.

(6) Each of the Parties shall, so soon as the others or any of them, or their or his
representatives, shall have executed and done all the assurances, acts and things hereby agreed to
be done by them respectively, and at the request and the cost of such other or others or his or their
representatives execute to him or them such releases, indemnities and assurances as may be
reasonable and proper.

IN WITNESS whereof the said Shri ______ and Shri ______ have hereto signed and
executed this agreement of dissolution and appended it to the said deed of partnership dated
_____.

Place:

Date: PARTY NO. 1

PARTY NO. 2
LEGAL LANGUAGE AND LEGAL WRITING 273

GENERAL POWER OF ATTORNEY

KNOW ALL ME BY THIS POWER OF ATTORNEY that I, Shri ______ s/o _____, age
_____ years, occupation _______, resident of _______ state that I intend to go abroad and stay
there fore a long time and so it is necessary and expedient for me to appoint an agent to look after
all my affairs in my absence.

By these present, I do hereby nominate, constitute and appoint Shri _______ s/o _____,
age ___ years, occupation _______ resident of ____________ as my attorney, in my name and on
my behalf to execute or do all or any of the acts or things hereinunder mentioned, that is to say -

(1) to appear and act in all the Courts, civil, revenue or criminal, whether original or appellate,
in the registration office or in any other office of Government or District Board, Municipal
Board or notified area or any other local authority.

(2) to sign and verify plaints and written statements, petitions of claims and objections,
memorandum of appeal and applications of all kinds and to file them in any such Court or
office.

(3) to appoint advocate, pleader or any other legal practitioner.

(4) to compromise, compound or withdraw cases, to confess judgements and to refer cases to
arbitration.

(5) to file and receive back documents, to deposit and withdraw money, and to grant receipts
thereof.

(6) to obtain refund of stamp duty or repayment of court-fee.

(7) to purchase property at Court auction sales in execution of my decree up to the amount of
decree.

(8) to take delivery of possession of property in execution of my decrees or of property


purchased for me at an auction sale.

(9) To realise debts due to me, to collect rents from my tenants of houses and to receive any
money due to me from any other person and to grant receipts and discharges for the same.

(10) to destrain the crops of my tenants for the arrears of rents.

(11) to grant lease of my house property lands, agricultural and non-agricultural.


274 LEGAL DRAFTING

(12) to file suits for rent and ejectment of tenants, and when expressly instructed by me, other
kinds of suits.

(13) to apply to Courts and officers for copies of documents and papers.

(14) to apply for further inspection of and to inspect judicial records.

(15) to nominate and to give consent to the appointment of a patwari, mukhia or chaukidar.

(16) to accept service of any summons, notice or writ issued by any Court or officer against me,
and

(17) generally to do all lawful acts necessary for the above mentioned purposes.

AND PROVIDED ALSO that the said attorney shall keep a true and correct account of
all income and expenditure, and shall render an account of all income and expenditure to me
annually, and shall pay me monthly all balances of money in his hand.

AND I hereby agree that all acts, deeds and things lawfully done by my said attorney
shall be construed as acts, deeds and things done by me and I undertake to ratify and confirm all
whatsoever that my said attorney shall lawfully do or cause to be done for me by virtue of the
power hereby given.

IN WITNESS hereto I have signed this deed on this __________.

Place:
Date: EXECUTANT

I KNOW THE EXECUTANT

(Shri ________________)

Advocate
LEGAL LANGUAGE AND LEGAL WRITING 275

REVOCATION OF GENERAL POWER OF ATTORNEY

TO ALL TO WHOM THESE PRESENTS SHALL COME, I, Shri __________ s/o


__________, age __ years, occupation _______, resident of _______ send greetings.

WHEREAS, by a Power of Attorney under my hand, dated ___________, I appointed


Shri _______ s/o _____, age ____ years, occupation ________ resident of _____________ as my
attorney, in my name and on my behalf to execute or do all or any of the acts or things hereinunder
mentioned, that is to say -

(1) to appear and act in all the Courts, civil, revenue or criminal, whether original or appellate,
in the registration office or in any other office of Government or District Board, Municipal
Board or notified area or any other local authority.

(2) to sign and verify plaints and written statements, petitions of claims and objections,
memorandum of appeal and applications of all kinds and to file them in any such Court or
office.

(3) to appoint advocate, pleader or any other legal practitioner.

(4) to compromise, compound or withdraw cases, to confess judgements and to refer cases to
arbitration.

(5) to file and receive back documents, to deposit and withdraw money, and to grant receipts
thereof.

(6) to obtain refund of stamp duty or repayment of court-fee.

(7) to purchase property at Court auction sales in execution of my decree up to the amount of
decree.

(8) to take delivery of possession of property in execution of my decrees or of property


purchased for me at an auction sale.

(9) To realise debts due to me, to collect rents from my tenants of houses and to receive any
money due to me from any other person and to grant receipts and discharges for the same.

(10) to destrain the crops of my tenants for the arrears of rents.

(11) to grant lease of my house property lands, agricultural and non-agricultural.


276 LEGAL DRAFTING

(12) to file suits for rent and ejectment of tenants, and when expressly instructed by me, other
kinds of suits.

(13) to apply to Courts and officers for copies of documents and papers.

(14) to apply for further inspection of and to inspect judicial records.

(15) to nominate and to give consent to the appointment of a patwari, mukhia or chaukidar.

(16) to accept service of any summons, notice or writ issued by any Court or officer against me,
and

(17) generally to do all lawful acts necessary for the above mentioned purposes.

Now, by this deed I, the said principal, do by these presents absolutely revoke the said
Power of Attorney, and every power or authority expressed or implied to be thereby given.

Provided, nevertheless, that nothing herein contained shall impeach or invalidate any act
which the said attorney shall do or cause to be done by virtue of any power or authority expressed
to be given by the said Power of Attorney, before the revocation thereof by these presents shall
have been made known to the said attorney.

IN WITNESS whereof, I, the said Shri ______ have hereto signed at ______ this the
________.

Place:

Date: EXECUTANT

I KNOW THE EXECUTANT

(Shri ________________)

Advocate
LEGAL LANGUAGE AND LEGAL WRITING 277

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THIS POWER OF ATTORNEY that, Shri ______ s/o ______,
age ______ years, occupation ______, resident of ______ hereby appoint and constitute Shri
______ s/o ______, age ______ years, occupation ______, resident of ______ my lawful attorney.
WHEREAS, I am owner in possession of properties, amongst others the one detailed
below situated in the city of ______.
AND WHEREAS, owing to business commitments I am unable to attend personally the
sale or the negotiation of its sale and I am desirous of disposing of the some at an early date.
AND WHEREAS, the said Shri ______ is willing to undertake the negotiation and the
sale of the same. NOW THEREFORE BY THESE PRESENTS, I, the said Shri ______ hereby
authorise and empower the said Shri ______ as the lawful attorney for me and on my behalf to do
the following acts, deeds and things, that is to say -
(1) To advertise for sale or otherwise procure and negotiate the sale of my said property described
below situate in the city of ______ at a net price of not below Rupees ______ (Rs. ____)
only.
(2) To receive from the purchaser the purchase money and to give proper receipt and discharge
for the same.
(3) In my name and as my act and deed to execute and sign a proper conveyancing of the said
property to the purchaser.
(4) To present the said deed of conveyance for registration to the proper Registration Authority,
to admit the receipt of the consideration money and to have the said deed registered AND to
do all acts, deeds and things which are necessary for conveying the property and registering
the said deed as fully and effectually in all respects as I could do the same if I were present
personally.
AND I HEREBY AGREE to ratify and confirm all and whatsoever my said attorney shall
lawfully do or cause to be done by virtue of these presents.
IN WITNESS whereof, I, the said Shri ______ hereto put my signature at ______ this
____th day of ______, 19__.

Place:
Date: EXECUTANT

I KNOW THE EXECUTANT

(Shri ________________)
Advocate
PLEADINGS

1. DEFINITION OF PLEADINGS
Order VI Rule 1 of The Code of Civil Procedure 1908 defines pleading as meaning plaint and
written statement. But a wider definition is given in Rule 3(2) of Civil Rules of Practice framed by
the Karnataka High Court, according to which definition plaint, written defence filed in such
proceedings, cross objections filed in appeals and any application filed in proceedings for seeking
interim reliefs are also pleadings.

2. MAIN RULES OF PLEADINGS


1. Only facts and not law must be stated in pleadings.
2. Only material facts must be stated.
3. The evidence on the basis of which the facts are proved should not be mentioned in the
plaint or pleading.
4. The facts must be stated concisely, precisely and with certainty.

1. Plead Only Facts and not Law: The first rule of pleadings requires that only facts must be
mentioned in the pleadings, which means that neither provisions of law nor conclusions of law
should be mentioned in the pleadings. For example, if a suit is to be filed on the basis of a
promissory note it must be pleaded that on a particular date the Party has received the amount and
has executed a promissory note. It should not be mentioned that there is a presumption under Sec.
118 of Negotiable Instruments Act that a promissory note is presumed to have been executed for
consideration. Similarly in a suit for possession by a landlord against a tenant it must be pleaded
that the tenancy has been terminated by serving a notice. It should not be pleaded that the notice is
valid under section 106 of the Transfer of Property Act. It is therefore clear that the necessary
facts which lead to the required conclusion must be mentioned and the legal consequences and
presumptions should not be mentioned in the pleadings. It is for the judge to draw such inferences
from those facts as are permissible under the law of which he is bound to take judicial notice.
However, the Parties can make their submission about law at any time. For example, the non-
maintainability of the suit which is a point of law, can be urged although no specific plea has been
raised in the pleading.
The rule that only facts and not law or presumption under law should be pleaded has the following
exceptions:
(a) Foreign Law: Courts do not take any judicial notice of foreign laws and hence they must
be pleaded as facts. The statutes of the foreign country intended to be relied upon should be
set forth as substantially as any other facts.
(b) Mixed Questions of Law and Fact: Where a question is one of mixed law and fact, it is
permissible and proper to plead both the facts and the legal conclusions. For example, the
Defendant may say that the suit is barred by the law of limitation, or he may say that he is
entitled to a set off after narrating the facts on which he bases his conclusions.
(c) Condition Precedent: The Code of Civil Procedure provides that any condition precedent
the performance of which is intended to be contested shall be distinctly specified in the
pleadings of the Plaintiff or Defendant. For example, the legality of the notice under Sec.
80, Code of Civil Procedure.
(d) Customs and Usages of Trades: Custom and usage of any trade and business shall be
pleaded like any other facts, if a Party wants to rely on them. But a custom repeatedly
brought before Courts and recognised by them regularly is deemed to have acquired the
278
LEGAL LANGUAGE AND LEGAL WRITING 279

force of law and need not be pleaded. For example, an occupancy tenant is entitled to cut
trees growing upon his holdings by local custom. It is not necessary for the occupancy
tenant to plead this custom, if he wishes to rely on his right to cut trees. Similarly, a Party
who wishes to rely on the usage of a particular trade which is at variance with any provision
of the Contract Act, he must plead the usage of such trade and business with its detailed
incidents. If it is not pleaded, no evidence to prove it shall be admitted.
(e) The fact of negligence, right or liability, unlawful or wrongful act should be specifically
pleaded. Every plea of fact should be specifically raised and provided.
Facts should be properly stated. For example, it is not sufficient to say that the contract was
rescinded. It should be state in what manner and by what means he contends that it was
rescinded.

2. Plead Only Material Facts: Material facts are those, the proof of which will enable a Party to
seek a relief from the court, and the omission of which will disentitle a Party from getting the
relief from the court. For example, in a suit for recovery of money the material allegation would
be that the Party has lent a definite sum of money to the other Party on a particular date. That the
other Party has failed to return the said money. In such a suit the reasons for taking the money or
the reasons for non-returning of it will be immaterial. Similarly in a suit for possession of house
by a land-lord against his tenant the material facts to be pleaded would be that there is a
relationship of landlord and tenant between the Parties and that the tenancy has been duly
terminated. As to how the tenancy was terminated and as to whether there are any documents in
this regard will be immaterial facts.
The second fundamental rule of pleadings is that every pleading shall contain only a statement of
material facts on which the Party pleading relies for his claim or defence.
This rule has been enunciated in Order VI, Rule 2 of the Code of Civil Procedure. Though the
rule is not a technicality an omission to observe it may increase the difficulty in the Courts task of
ascertaining the rights of the Parties. Sometimes it may be practically difficult to ascertain what is
a material fact. If any such reasonable doubt arises it is better to plead that fact than to omit it
because unless a fact is pleaded he shall not be allowed to prove it at the hearing of the suit. Of
course, a material fact can be inserted in the pleadings by amendment which is the right of the
Party, but when a pleading is amended one is likely to be saddled with the cost of the other side.
When a suit is brought under a particular statute, all facts which are necessary to bring the suit
under the statute must be alleged. When a rule of law applicable to the case has an exception to it,
all facts are material which tend to take the case out of the rule or exception. For example, the
plea that a woman claiming maintenance has lost her right due to continuous desertion or living in
adultery should be raised specifically.
Where a person claims an alternative relief he must plead facts entitling him for such relief.
Where a person claims relief owing to his specific legal position etc. he should specifically
mention it. For example, a childless Mohammedan widow claims 1/4 share in the property of her
husband. She should specifically state that her husband was a Shia. Similarly, where the question
of age or time affects the rights of the Parties, the facts should be specifically pleaded.
Where a Plaintiff sues on the basis of a title he must state the nature of the deeds from which he
derived the title.
Where a plea is based on custom, it must be stated in precise form what the custom is.
Every plea must be specifically pleaded and proved. Court cannot allow either Party to the suit to
lead evidence inconsistent with his plea. If any Party is allowed to lead evidence inconsistent with
280 LEGAL DRAFTING

his plea in spite of objection by the other Party, the evidence in rebuttal does not cure the legal
defect.
Following are the exception to this rule.

(a) Contents of Documents: Whenever the contents of document are material, it shall be
sufficient in any pleading to state the effect of the document in brief without setting out
whole or any part of the document unless any precise words are material (Order VI Rule
9, CPC). For example, if the claim is based on a sale deed, it is sufficient to state that
Defendant has sold the property to the Plaintiff by a sale deed dated ___________.
(b) Matters of Inducement: It means the introductory a prefatory facts to be stated in the
first and second paragraphs in the body of the plaint or written statement. Though it is
not necessary yet sometimes desirable to commence a plaint with some introductory
allegations stating who the Parties are, what business they carry on, how they are related
and connected and other surrounding circumstances leading up to the dispute. Though
these are not material facts yet are allowed in England and hence in India too. But he
matter of inducement should be reduced to the minimum need.
The material facts should be stated with precision and not in argumentative way. However, an
alternative plea can be taken and proved in the pleadings. In certain cases inconsistent pleas can
also be taken. But where the inconsistent pleas prejudice the opposite Party or embarrass the fair
trial, it cannot be allowed.
Where the material facts are not mentioned, the court cannot give any decision on such facts.

3. Facts, Not Evidence: The third fundamental rule of pleading has been laid down by Order VI,
Rule 2 of Code of Civil Procedure. It says that every pleading must contain a statement of
material facts but not the evidence by which they care to be proved. For example, if a suit is to be
filed for recovery of money lent under a demand promissory note it is not necessary to mention in
the pleading as to how the money was obtained and in whose presence it was paid. These facts
constitute a part of the evidence. Similarly in a suit for recovery of money where the Plaintiff
wants to rely upon the correspondence, it is sufficient to mention that the Defendant has admitted
his liability in the correspondence between the Parties. Details of the correspondence should not
be mentioned.
The Plaintiff or Defendant is by all means entitled to tender evidence to prove these facts.
In some cases where the facts in issue and relevant facts are so mixed up that it is very difficult to
separate them and if it is so the relevant facts may be stated. For example, where the custom is
based on the village administration paper, which is the basis of claim and its sole proof, the record
has to be pleaded. In Punjab, Rewaz-e-Aam (Customs) are contained in the Manual of customary
Law which records customs, are only evidence and it is not necessary to refer them in the plaints.

4. Pleadings must be in a Concise Form With Precision and Certainty: The fourth rule is that
the material facts be stated in the pleading in a concise form. Pleading must be drafted with
sufficient definiteness to enable the opposite Party to understand the case he is called upon to
meet. Material facts must be stated precisely and coherently and as briefly as is consistent with
clearness and with obscurity should be avoided at all costs. Unnecessary facts should be omitted.
The language used should be terse and a mastery of the vocabulary and grammar of the language
in which pleadings are drafted is essential. The whole case should be stated with brevity. Brevity
can be attained by:
(a) Omitting all unnecessary facts, i.e., matters of law, matters of evidence, facts which are
not material, etc.,
LEGAL LANGUAGE AND LEGAL WRITING 281

(b) Omitting all unnecessary details when alleging material facts; and
(c) Giving proper attention to the language used in alleging material facts.
Precision in drafting can be attained by remembering and observing the following points:
1. Correct names of persons and places with correct spelling should be given. Adopt same
spelling throughout.
2. As far as possible, avoid pronouns.
3. Do not refer the Plaintiff and Defendant by their names.
4. Things should be called by correct names and the same things should be referred by the
same name.
5. Facts must be stated plainly and clearly. Avoid ifs and buts. Plead facts in strict
chronological order.
6. As far as possible simple sentences should be used. As far as possible prefer active voice to
passive one.
7. Repetitions should be avoided.
8. Fundamental rules of grammar and syntax should not be lost sight of.
9. Pleading should be divided into paragraphs, number consecutively.
10. Dates and numbers should be repeated in words.
11. A lawyer suing on a document or on an Act should use the language of the document or the
Act itself. He should not invent his own language however correct it may be. For example
an insurance policy becomes void in case the assured shall die of his own hand. In this
case, while drafting the pleading instead of pleading that the assured died of his own
hand. should not plead the assured killed himself or he committed suicide.
12. Forms prescribed in Appendix A of the code of Civil Procedure should be followed. The
pleadings should be signed, dated and verified.

3. PLEADINGS AND EVIDENCE


If a fact is not pleaded in the plaint or written statement, evidence in respect of the same cannot be
admitted. There must be consistency between pleadings and proof. In order to satisfy the
requirements of natural justice, it is necessary to give notice of the case of a party to the opposite
party. Otherwise the opposite party will be taken by surprise and will not be able to contest the
case properly.

4. EFFECT OF FAILURE TO PLEAD


Failure to plead a fact debars a party from proving that fact. Therefore, if written statement is not
filed, the defendant will have to oppose the plaintiffs case merely by denying the facts pleaded by
the plaintiff and by disproving them. He will not be able to prove facts not mentioned in the plaint.
However, merely because the defendant has not files written statement, he is neither deemed to
have admitted the facts mentioned in the plaint, nor is he barred from contesting the suit.

5. PARTS OF A PLEADING
First part of the pleading is the cause-title. It has three sub-parts.
1. Case Number
2. Forum, i.e., title (name) of the court.
3. Description of the parties.
282 LEGAL DRAFTING

Case Number
Case Number is to be written in the top right corner of the paper. It depends upon the nature of the
case. Karnataka Civil Rules of Practice provides for following case numbers:

Nature of the Case Case No. Short From


1. Suits Original Suit No. O. S. No.

2. Suits cognisable by the Court of Small Causes Small Cause Suit No. S. C. No.

3. Execution proceedings Execution Case No. Ex. C. No.

4. Land acquisition proceedings Land Acquisition Case No. L. A. C. No.

5. Matrimonial proceedings Matrimonial Case No. M. C. No.

6. Guardians and wards cases Guardians & Wards Case No. G. & W. C. No.

7. Probate and succession cases Probate & Succession Case No. P. & S. C. No.

8. Insolvency cases Insolvency Case No. I. C. No.

9. Arbitration cases Arbitration Case No. A. C. No.

10 House rent cases House Rent Case No. H. R. C. No.

11 Accident claims under Motor Vehicles Act Motor Vehicle Case No. M. V. C. No.

Similarly in case of appeals, they may be Regular Appeals (R. A. No.) or Miscellaneous Appeals
(M. A. No.). Revision petitions under any special enactment shall be designated as Revision
Petition and abbreviated as REV with a brief reference as to the nature of case indicated in
brackets. Thus, revision under Rent Control Act would carry REV (RENT) No.

Forum
Forum is nothing but the name or description of the court before which the case is filed. It is
written immediately below the case number, in the centre of the page and in block letters.

Description of Parties
The parties are described by their names, parentage (in case of married woman, by her husbands
name), occupation and residence. They are given the following titles as per Karnataka Civil Rules
of Practice:

Nature of the Case Contending Party Opposing Party


1. Suits Plaintiff Defendant
2. Appeals Appellant Respondent
3. Execution Cases Decree-Holder Judgment Debtor
4. All other proceedings Petitioner Opponent
LEGAL LANGUAGE AND LEGAL WRITING 283

Provision
Then he has to write the provision of law under which he is filing the plaint. Plaint is filed under
Order VII, Rule 1 of Civil Procedure Code. If the plaint is a money suit, then the provision will be
Order VII, Rules 1 & 2 of Civil Procedure Code. Thus, in this case, the provision is - O. VII, RR.
1 & 2, C.P.C.

Body of the Plaint


After this, following paragraphs are to be drafted:

1. Opening Paragraph
2. Facts
3. Cause of Action
4. Jurisdiction
5. Court Fees
6. Prayer

The first paragraph mentioned above is common for all pleadings. In case of a plaint it reads The
Plaintiff above-named most respectfully submits as under: In case of other pleadings, in place of
the word Plaintiff, the appropriate title of the party is to be substituted.
The remaining paragraphs are to be numbered. Paragraph next to the opening paragraph is
numbered 1 and contains brief facts of the case. Facts may extend to this paragraph and one or two
more of the next paragraphs. It also goes without saying that the facts pleaded must cover all the
ingredients of the suit. If any fact is not pleaded, then evidence on that point cannot be lead, and
no argument on that point will be heard.
Next three paragraphs are technical paragraphs and are to be drafted according to the tradition of
pleading and drafting. They show the Cause of Action, Jurisdiction and the Court Fees,
respectively.
Cause of action means the reason for institution of the suit. The cause of action column is
necessary for two reasons.
1. No suit can be filed without there being a cause of action.
2. Limitation commences from the date of cause of action.
Jurisdiction column shows how the present suit falls within the territorial jurisdiction of the Court.
Court fees column shows under which provision of the Karnataka Court Fees and Suits Valuation
Act the court fee is computed.
Next paragraph is the prayer, which is an important part of the plaint. All the available reliefs
should be prayed. If any relief is not prayed in the suit, no separate suit to seek that relief is
admissible (O. II, R. 2, CPC).

6. PREPARATION OF PLEADINGS
Pleadings are to be prepared according to the provisions of the Karnataka Civil Rules of Practice
which requires that the pleading should be typed, printed or otherwise legibly written on a green
(blue) paper of legal size (30.5 cm. long and 21.5 cm. wide) with the following margins.
Top Margin - 2.5 cm.; Bottom Margin - 2.5 cm.; Inner Margin - 2.5 cm.; Outer Margin - 6.5 cm.
284 LEGAL DRAFTING

2.5 cm 6.5 cm 6.5 cm 2.5 cm

2.5 cm

2.5 cm
30.5cm

21.5 cm 21.5 cm
FRONT SIDE OF THE PAPER BACK SIDE OF THE PAPER

7. AMENDMENT OF PLEADINGS
O. VI, R. 17 deals with the amendment of pleadings. Court may at any stage of the proceedings
allow either party to alter or amend his pleadings in such manner and on such terms as may be
just, and all such amendments shall be necessary for the purpose of determining the real questions
in controversy between the parties.
The policy of the courts is that amendments should be allowed in suitable cases in order to
overcome the effects of bona fide mistakes whether of law or of fact. All the amendments which
do not cause injustice to the opposite party are normally allowed quite liberally.
An amendment which is fraudulent in nature is not allowed. So also where the amendment alters
the very foundation and character of the suit, it is not allowed.
Whenever the Court passes an order allowing the amendment of a pleading the same shall be
carried out within the time given for such amendment. If no time is specified by the Court, the
amendment shall be carried out within 14 days from the date of the order. If the party fails to
amend the pleadings within such time, he will not be allowed to amend the pleadings unless the
Court extends the time. The amendment shall be carried out in red ink and in the margin. If the
amendment cannot be written in the margin, the same may be written in a separate sheet and the
reference to that sheet shall be made in the margin.
The party or the pleader shall make an endorsement below the amendment that the amendment
was carried out as per the order of the Court and give the particulars of the IA and the date of the
order on the IA.
When the Court orders for the addition, substitution or deletion of a party, the cause title as well as
the body of the pleading shall be amended accordingly before the adjourned date of hearing.
LEGAL LANGUAGE AND LEGAL WRITING 285

8. ISSUES
The Presiding Officer will then compare the averments of the plaint and the written statement to
find out the actual controversy between the plaintiff and the defendant. Thus, he will ignore the
facts pleaded by the plaintiff and admitted by them. He will only concentrate on those points,
which are pleaded by the plaintiff and challenged by the defendant. Issues serve two very
important purposes:
1. They mark exact controversy between the plaintiff and the defendant;
2. They decide the burden of proof.
Issues are framed in the form of questions, such as Whether the Plaintiff proves that he has
advanced loan to the defendant on 1.10.1996?
Issues are frames in original suits only. In case of small cause suits or rent control cases, where the
proceedings are of summary proceedings, issues are not frames. It is quite evident that if written
statement is not filed in an original suit, question of framing issues does not arise.
In framing issues, the Karnataka Civil Rules of Practice direct the Courts to proceed as under:
1. Every material proposition of fact and every proposition of law which is affirmed by one side
and denied by the other shall be made subject of a separate issue.
2. Ordinarily, the following matters shall form the basis of framing issues:
(a) The pleadings in a case.
(b) All documents produced by the parties before framing of issues.
(c) Records of examination, if any, of the parties, their pleaders or witnesses (including those
examined by the Court under O. XIV, R. 4, C.P.C.).
(d) Oral submissions or replies given by the parties or their pleaders to the questions put by
the Court at the time of framing of the issues.
3. Every issue of fact shall be so framed as to indicate on whom the burden of proof lies.
4. Every issue of law shall be so framed as to indicate, either by a statement of admitted or
alleged fact, or by reference to the pleadings or a document mentioned in the pleadings, the
precise question of law to be decided.
5. No proposition of fact which is not by itself a material proposition, but is relevant only as
tending to prove a material proposition, shall be made subject of an issue.
6. No question regarding admissibility of evidence shall be made subject of an issue.
Issues are framed in question form. They shall be framed by the Presiding Officer and written or
types on a separate sheet of paper and shall be signed and dated by him.
Issues may be amended or struck off at a later stage, if necessary.

9. EVIDENCE
In the evidence stage, first plaintiff leads his evidence. He examines his witnesses, and proves the
documents he has produced. The witnesses of the plaintiff are given numbers PW1, PW2, and so
on. The documents produced by the plaintiff are marked as exhibits during the examination of
these witnesses, and they are numbered as ExP1, ExP2, etc. The plaintiff examines himself as
PW1 and then he goes on to examine the other witnesses, if any. If the plaintiff does not examine
himself as PW1 and examines some other witness as PW1, he can examine himself later only with
the permission of the court.
286 LEGAL DRAFTING

Similarly, the witnesses of the defendant are given numbers DW1, DW2, and so on. The
documents produced by the defendant are marked as exhibits during the examination of these
witnesses, and they are numbered as ExD1, ExD2, etc. The defendant examines himself as DW1
and then he goes on to examine the other witnesses, if any. If the defendant does not examine
himself as DW1 and examines some other witness as DW1, he can examine himself later only
with the permission of the court.
Following points must be noted in respect of oral evidence:
1. Evidence may be led only on facts in issue and the relevant facts.
2. It must be direct, i.e.,
(a) if it refers to a fact which can be seen, it must be the evidence of a witness who says he
has seen it,
(b) if it refers to a fact which can be heard, it must be the evidence of a witness who says
he has heard it,
(c) if it refers to a fact which can be perceived by any other sense or in any other manner,
it must be the evidence of a witness who says he has perceived it by that sense or in
that manner,
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of a witness who holds that opinion on those grounds.
Examination of any witness will be in three parts:
1. Examination-in-Chief;
2. Cross Examination;
3. Re-examination.
Examinations-in-Chief of the plaintiff and his witnesses are conducted by the plaintiffs advocate
and their cross-examinations are conducted by the defendants advocate. If any ambiguity arises in
the cross-examination, plaintiffs advocate will be given an opportunity to conduct re-examination
of the witness.
Similarly, examinations-in-Chief of the defendant and his witnesses are conducted by the
defendants advocate and their cross-examinations are conducted by the plaintiffs advocate. If
any ambiguity arises in the cross-examination, defendants advocate will be given an opportunity
to conduct re-examination of the witness.
When a witness is put in to the witness box, first he is administered the oath in the following
terms: I shall state the truth, the whole truth and nothing but the truth. Then his name, fathers
name, surname, age, occupation and residence is noted down. After this, he will be asked
questions by the advocate on whose side he is giving evidence. This is what is called the
examination-in-chief. Following points are to be remembered with reference to the examination-
in-chief:
Leading questions are not allowed except in the following cases:
1. Where it is about an admitted fact,
2. Where it has been sufficiently proved.
Leading questions are, however, allowed in cross-examination. If any question, which is not
permissible, is put, either in the examination in chief or in the cross-examination, the advocate on
the other side must immediately object to it. The presiding officer will have to give his decision as
to the admissibility immediately.
LEGAL LANGUAGE AND LEGAL WRITING 287

The evidence is recorded by the presiding officer in the witnesss own words. This is called the
deposition of that witness. If there is any objection to a question which is over-ruled by the
presiding officer, the advocate who had raised the objection may request the court to record that
part of the evidence in question-answer form. The presiding officer will record the evidence in
question answer form, and also note down the objection raised by the advocate and the courts
ruling on that objection. This is useful in the appeal, if any, preferred against the judgement of this
court.
FORMS OF PLEADING

I. CIVIL PLEADINGS
Plaint
Plaint is the statement of claims and demands in writing. O. VI, R. 1 of CPC mentions the
particulars to be contained in a plaint. They are:
1. The name of the Court in which the suit is brought.
2. The name description and place of residence of the plaintiff.
3. The name description and place of residence of the defendant.
4. Where the plaintiff or defendant is a minor, a statement to that effect.
5. The facts which constitute the cause of action and when it arose.
6. A statement as to the claim of the plaintiff.
7. A statement as to the actual claim of the plaintiff which he demanded of and from the
defendant and but the defendant did not satisfy the plaintiff of his claim.
8. The facts showing that the Court has jurisdiction.
9. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount
so allowed or relinquished.
10. A statement as to the value of the subject matter of the suit for the purposes of jurisdiction
and court fees.
11. A statement as to the relief specifically claimed by the plaintiff.
12. Signature of the plaintiff, or his authorised agent or advocate.
13. Verification of the plaint.
14. Signature of the verifier.

Written Statement
The defendants defence or pleading is called written statement. It contains the denial of
allegations made by the plaintiff against the defendant in the plaint. Some of the allegations may
also be admitted by the defendant in the written statement. Failure to file a written statement does
not amount to admission of the plaint allegations by the defendant.
Written statement must contain denials which are specific. They should not be vague or evasive.
Every allegation of fact in the plaint must be specifically denied. If there is no specific denial, or
denial by necessary implication, or where an allegation of fact is not stated to be not admitted by
the defendant, the fact may be deemed to be admitted.
The written statement must contain following matters:
1. It should state all the matters which show that the suit is not maintainable, or the
transaction in the suit is either void or voidable at the option of the defendant.
288 LEGAL DRAFTING

2. It should state all the grounds of defence, which if not stated would take the opposite
party by surprise.
3. It should state all the grounds that raise issue of fact not arising out of plaint, such as
fraud, coercion, undue influence, misrepresentation, limitation, release, payment,
performance, etc.
4. It should deal with each allegation in the plaint, either admitting it or denying it directly.
5. It should state separately and distinctly the distinct grounds of defence or set-off founded
upon separate and distinct facts.

Set-off
Set-off is the doctrine of law which allows the defendant to put his claim under certain
circumstances against the plaintiff before the Court. It is a reciprocal acquittal of debts, a cross-
claim for money and it may extinguish the plaintiffs claim. Its purpose is to avoid the necessity of
filing a fresh suit by defendant against the plaintiff.
Right to set-off is granted by O. VIII, R. 6, C.P.C. where cross demands arise out of the same
transaction or are so connected in their nature and circumstances as to make it inequitable that the
plaintiff should recover and the defendant driven to a cross suit. A set-off may be either a legal
set-off or equitable set-off.
Legal Set-off: Set-off allowed under O. VIII, R. 6 is legal set-off. It is in respect of ascertained
sum of money. It may exceed the plaintiffs claim, and in such cases, decree may be drawn in
defendants favour. It may arise out of the suit transaction itself, or from some other transaction. It
should be legally recoverable by the defendant, i.e., it cannot be time-barred debt. Because legal
set-off makes the written statement similar to a plaint, court fee is necessary.
Equitable Set-off: In this case set-off is allowed even in respect of unascertained sum of money,
such as dames, if they form the part of the same transaction from which the plaintiffs claim arises.
Though CPC does not provide for such set-off, the defendant is allowed to claim equitable set-off
in the exercise of his general right to plead a set-off. The defendants claim, however, cannot
exceed the plaintiffs claim.

Legal Set-Off Equitable Set-Off


1. It is for ascertained sum of money. It may be for unascertained sum of money.
2. It may or may not arise from suit transaction. It has to arise from suit transaction.
3. Court is bound to entertain it. Court is not under an obligation to entertain it.
4. The amount must be legally recoverable. Even a time-barred claim may be entertained.
5. Defendants claim may exceed plaintiffs claim. Defendants claim cannot exceed plaintiffs claim.
6. Requires Court Fee. Does not require Court Fee.

Counter Claim
In Indian law, set-off and counter claim denote one and the same things. But under English law,
they are different. It is a claim which a defendant is permitted to make against the plaintiff in
respect of any amount, whether the same is ascertained or unascertained, and it may be due on any
cause of action. Though C.P.C. does not contain any provision as to counter claim, High Courts
having original jurisdiction may frame rules regulating the procedure governing counter claims.
LEGAL LANGUAGE AND LEGAL WRITING 289

Set-Off Counter Claim


1. Amount to be set-off arises from suit transaction. The counter claim may arise out of any transaction.
2. Set-off must be in respect of ascertained sum of Counter claim may be in respect of unascertained
money. sum of money.
3. Set off is in the nature of a defence. Counter claim is in the nature of a weapon.
4. Set-off may not exceed plaintiffs claim. Counter-claim may exceed plaintiffs claim.
5. In case of set-off a claim barred as on the date of In case of counter claim a claim barred as on the
filing of the suit is not admissible. date of its pleading is not admissible

Interim Applications
An interim application or interlocutory application means an application to the Court made in any
case already instituted in such Court. An application for setting aside decree of the Court or an
execution petition is not an interim application.
Every such application shall be indicated by the abbreviation I.A. and shall be consecutively
numbered in the case in which it is filed.
All the facts on which an applicant relies for making the prayer or obtaining the relief sought in
the application shall be set out in an affidavit accompanying the application. Where, however, the
facts appear from records or relate to the conduct of the applicants advocate himself, the Court
may permit a memorandum of facts signed by the advocate in lieu of the affidavit. However, in the
following six cases only affidavit and not memorandum of facts can be filed:
1. Application for temporary injunction
2. Application for attachment before judgment
3. Application for arrest before judgment
4. Application for appointment of guardian
5. Application for appointment of receiver
6. Application for amendment of pleadings
Every interim application contains a double cause title. The first cause title shall show the case
number, the name of the court and the description of the parties. Thereafter the second cause title
shall show the IA No. and the description of the parties to the IA. Thereafter the provision of law
under which the IA is filed shall be shown.
IA shall be signed by the party or the pleader.
Order sheet shall have a column for IAs and show the number of pending IAS. Order on any IA in
order sheet shall clearly indicate IA No. on which the order is passed.
IA shall be posted for orders before the presiding officer. If the other side has put up appearance a
copy of the IA shall be served on the other party before it is so posted before the Presiding Officer
for orders. No copy need be served on party remaining ex parte. Service of copy may be dispensed
with if the advocate for applicant makes endorsement that:
1. the other side refused service; or
2. that copy could not be served in spite of due diligence.
If the application is emergent one, before taking endorsement from other side, an endorsement
showing that the application is emergent one to be taken up on the day specified that shall be made
If the order on IA is passed without service of notice on other side, no notice of order shall be
served unless Process Memo is filed alongwith sufficient number of copies of IA with affidavit or
memo of facts and requisite amount of process fee.
290 LEGAL DRAFTING

There shall be only one prayer in an IA. If there are more prayers, court shall ask the applicant to
choose one of them and delete the others. Separate applications may be filed in respect of each of
the rest.

Affidavits: Affidavit is the sworn statement of the person signing it, i.e., of the deponent. It is
used in place of oral evidence.
Every affidavit shall have the cause title. The Deponent shall sufficiently identify himself in the
affidavit. Affidavit shall be confined to statement of facts and avoid arguments. When the facts are
based on records and not on personal knowledge of the Deponent, the Deponent shall state so, and
state that he believes the same to be true. As far as possible, the deponent shall give the source of
information and grounds for his belief.
Affidavits shall be attested by the following officers prescribed in the Civil Rules of Practice:
1. Judicial Officers;
2. Registrar or Sub-Registrar under Registration Act;
3. Registrar, Deputy Registrar or Assistant Registrar of a High Court;
4. Chief Ministerial Officer of any Court; and
5. Notary Public.
Deponent shall be known to the attesting officer. If he is not known to the attesting officer
personally, he will be identified by person known to attesting officer. If not, his left thumb
impression shall be obtained and endorsed by attesting officer.
If the deponent is blind, illiterate or does not understand the language of affidavit, it shall be
explained to him in the presence of attesting officer.
If any document is referred to in affidavit, the attesting officer shall endorse on the document that
it is the document referred in the affidavit.
Oath Commissioner: Apart from the officers mentioned above, the High Court may also appoint
Oath Commissioners for the purpose of attesting the affidavits. Any advocate having a practice of
not less than 2 years and not more than 7 years can be appointed as Oath Commissioner. The
initial appointment shall be for a period of 3 years and can be extended further by 2 years.
However either the initial appointment or the extension of period shall not be beyond the date on
which the concerned advocate completes 7 years of practice.
The Oath Commissioner is entitled to a fee of Rs. 5 for every attestation. If he has to attend the
premises of the deponent for the purpose of attestation, he is entitled to a further fee of Rs. 15.
The Oath Commissioner shall affix a seal of specified design on all the affidavtis attested by him.
He shall also maintain a register of all the affidavits attested by him, the copy of which he shall
send to the Registrar of the High Court from time to time for inspection.
After the expiry of his tenure, the Oath Commissioner shall surrender the seal as well as the
register to the High Court.

Guardianship
As a minor is incapable of understanding the consequences of his acts, law does not allow him to
enter into contracts, except contracts for necessaries, by himself. He can enter into contracts
through his guardian. Though he is, as a rule, capable of holding and receiving property, his
property is to be looked after by his guardian. Therefore, guardianship gives the guardian many
powers and imposes many duties upon the guardian. Guardianship of a Hindu minor is governed
by the Hindu Minority and Guardianship Act, 1956, while that of a Muslim minor is governed by
LEGAL LANGUAGE AND LEGAL WRITING 291

the personal law of Muslims. The guardianship of a minor who is neither a Hindu nor a Muslim is
governed by the Guardians and Wards Act, 1890.

Minor, Ward and Guardian


Minor is a person who has not attained the age of majority fixed under the provisions of the Indian
Majority Act. Indian Majority Act fixes the age of majority at 18 years. Thus any person who is
below 18 years of age is a minor.
Ward is a minor for whose person or property or both there is guardian appointed.
Guardian is a person having the care of the person of a minor, or of the property of a minor, or of
both person as well as property of a minor.
A guardian may be a de jure guardian or a de facto guardian. De jure guardian is a guardian
constituted and recognised by law. He may be natural guardian, testamentary guardian or
certificated guardian. A de facto guardian is a guardian in fact. Though he is not constituted by
law as a guardian of a minor, he discharges the functions of a guardian.

Applications under Succession Laws


Succession is the process by which the property of a deceased devolves upon his heirs or legatees.
Succession may be either testamentary succession or intestate succession.

Testamentary Succession
Where the deceased person has left a will behind him, his property devolves upon the legatees
mentioned in the will, and the distribution of his property is according to the terms of the will.
The deceased person is called "testator", the persons entitled to receive the property under the will
are called "legatees" and the property received by the legatees is called "legacy".
Under the will the testator names a person to collect the properties and to distribute them among
the legatees. This person is called "executor". After the death of the deceased, the executor makes
an application to the competent court for probate. Probate is a copy of the will on which the Court
puts its seal to show that it is a genuine will. Thus, probate is the conclusive proof that the will is
genuine and it also authorises the executor to collect properties of the deceased testator.

Intestate Succession
Where the deceased person has not written a will, his property goes to his heirs. This is known as
intestate succession. The distribution of the property of the deceased among his heirs is governed
by the relevant law applicable to the succession of the estate of the deceased. The same law also
determines the heirs of the deceased. Intestate succession of Hindus is governed by Hindu
Succession Act, 1956, that of Muslims is governed by Mahomedan Law and in case of others
Indian Succession Act, 1925 is applicable.
The deceased person is called "propositus", the persons entitled to receive the property under the
will are called "heirs" and the property received by the legatees is called "inheritance".
As there is no will, there will not be any executor to collect the properties of the deceased and to
distribute them among the heirs. Therefore, one of the heirs will have to make an application to the
competant court for "Letter of Administration". When the letter of administration is issued to the
applicant heir, he will be called "Administrator".
292 LEGAL DRAFTING

Succession Certificate
Succession certificate is necessary where probate or letter of administration are not compulsory.
Without it, the legal representatives cannot prove that they are entitled to receive the estate of the
deceased.
An application for a Succession certificate shall be made to the District Judge by a petition signed
and verified by or on behalf of the applicant in the manner prescribed by the CPC, and it sets forth
the following particulars, namely:
1. the time of the death of the deceased;
2. the ordinary residence of the deceased at the time of his death and, if such residence was
not within the local limits of the jurisdiction of the Judge to whom the application is
made, then the property of the deceased within those limits;
3. the family or other near relatives of the deceased and their respective residences,
4. the right in which the petitioner claims;
5. the absence of my impediment under Section 370 or any other provision of this Act or
any other enactment to the grant of the certificate; and
6. the debts and securities in respect of which the certificate is applied for.
Application for such a certificate may be made in respect of any debt or debts due to the deceased
creditor or in respect of portions thereof.

II. CRIMINAL PLEADINGS

Complaint
Complaint is an allegation made orally or in writing to a Magistrate that some person, whether
known or unknown, has committed an offence. It is made with a view to his taking action under
the Criminal Procedure Code. A police report is not a complaint. It is called a Private Complaint.
A report made by a police officer in a case which discloses, after investigation, the commission of
a non-cognisable offence shall be deemed to be a complaint, and the police officer by whom such
report is made is deemed to be a complainant. It is called a Criminal Complaint.
Thus,
1. A "complaint" is always made to a Magistrate under sec. 200, Cr.P.C. When the same is
made to a police officer, it amounts to an "information".
2. The complaint must allege the commission of an offence. An "offence" means any act or
omission made punishable by any law for the time being in force.
3. The person who makes the complaint is called the "complainant" and the person against
whom the complaint is made is called the "accused". In case of a Criminal Complaint
always State is the complainant.

Bail Application
The word "bail" is not defined under Cr.P.C. It is the release of the accused during the pendency
of the trial. Blackstone defines bail as "a delivery or bailment of a person accused of an offence to
his sureties upon their giving a sufficient security for his appearance; he is being supposed to
continue in their friendly custody instead of going to jail".
LEGAL LANGUAGE AND LEGAL WRITING 293

All the offences falling under I.P.C. are classified either as bailable offences or non-bailable
offences, and the First Schedule to the Cr.P.C. shows which of the offences is bailable and which
is non-bailable.
Secs. 436 and 437 of Cr.P.C. deal with the right of an accused t claim his release on bail. Sec. 436
deals with bailable cases, where the accused can claim bail as a matter of right. Sec. 437 deals
with non-bailable cases, where the accused may be released on bail at the discretion of the Court.
Bails granted under these sections are called "regular bails".
At the first instance, application for regular bail is filed before the Magistrate before whom the
matter is pending. If he rejects the application, a fresh application (not appeal) may be filed before
the Sessions Court. If the Sessio