Contracts Part III: The Role of Legalese in Contract Drafting
small business contract components

Legalese contract language can be off-putting but it serves to crystallize its contents.


Editor’s note: This is part three of the contract series Here are part 1 Small Business Contracts Part I: A Different Perspective and part 2 Contracts Part II: Laying the Groundwork respectively.

Every person who has been required to review a draft contract is immediately confronted with having to construe legal mumbo jumbo, complete with “therefors” (to be distinguished from the more common “therefore”) and “whereases”, “theretoes” and sometimes rather lengthy passages of gobbledygook. 

For the many of us who advocate that contract language should be clear and concise, there is an ongoing battle against archaic language that creeps in, but why is it still around?

Here are four key components of a contract:

1. Formality Has its Psychological Uses

It should be an interesting fact to readers that engaging with legal matters implicates a level of formality that does not exist in most other areas of public or private life.

 In a court of law, judges wear robes and are addressed—Your Honor.  Lawyers are expected to dress formally; when the judge walks in, the gallery stands.

The trappings of formality may seem out of place in a culture suffused with informality but in a land governed by laws, legal matters command weighty consideration.

Legal formalities also carry with them a certain element of intimidation.

Persons likely to embellish or even lie about their narration of events are much more likely to convey a narrative that is more spare and truthful in a legal proceeding where the formality is intended to impress upon participants the consequences of violating a sworn oath.

In defense of formality in legal writing, the same can be said for commencing a contract with recitals such as “Whereas, Mr. Smith owns a pair of pliers, etc.

The idea is to impress upon signatories that they are entering into a legally binding relationship in which society, itself, holds an important interest. In other words, the subtext of formal language used in contact drafting is “Watch out”; you are doing something very serious here, so pay attention.”

2. Sometimes Legalese is More Precise

One of the problems besetting everyday language is that it has become increasingly imprecise.

By its very nature drafting legal documents is an exercise in precision, the idea being that it must always remain clear to the reader what the writer is referring to. 

For example, it is common to see such phrases as “as defined in Section 2, hereof” or “the documents submitted along with the accompanying petition and exhibits attached thereto.”

The point of this archaic phraseology is to define a reference, i.e. instead of having to clarify that “it is section 2 of this contract” one uses section 2 hereof (meaning, “of this contract”).

Similarly, “thereto” informs the reader that the exhibits are attached to the petition—not to the contract.

The “therefor” in legalese does not mean “therefore” as in the consequences of an action but “for that thing or action,” i.e. 

In exchange for painting Bill’s House the painter received $20.00 “therefor”, instead of the longer construction, i.e. $20 for painting the house”.

Next- #3 Familiarity May Breed Contempt and #4 Clarity


Are Non-Compete Provisions Still Enforceable?

Are Non-Compete Provisions Still Enforceable?

As a Hispanic business owner when it comes to non-compete provisions, it pays to know your stuff Here's a hypothetical: Jose manages a Hispanic business with expertise in  software development in New York—Pharma Software Solutions Inc. (“Pharma Software”) -- providing...

Lost Your Green Card While Traveling? Here’s What to Do

Lost Your Green Card While Traveling? Here’s What to Do

What do you do when you lose your green card in a foreign county? It sounds like a disaster scenario, but stay calm. There's a way to solve the problem. To lose your Green Card while you are traveling is, undoubtedly, an aggravating experience, but it is not a...

Beware of Contract Assignments and Change of Control Provisions

Beware of Contract Assignments and Change of Control Provisions

Hispanic business owners should watch out for Assignment and Change of Control Provisions. Why? Because they can radically change how you handle business. Let's look at a scenario: Carlos has developed a very successful Software company—Let’s call it “My Favorite...


Sign Up for the Latin Biz Today Newsletter

Video Gallery

PR Newswire

Pin It on Pinterest