In the last segment of this series we talked about the following contract languages:
- Language of Agreement
- Language of Performance
- Language of Obligation
- Language of Discretion
- Language of Prohibition
This segment will cover the remaining languages of:
- Language of Policy
- Language of Declaration
- Language of Belief
- Language of Intention
- Language of Recommendation
The better your knowledge of the language contracts, the better you will be able to understand the specific provision that is operative to your situation. We will start with the Language of Policy.
Language of Policy
The Language of Policy does not deal directly with the what the parties expressly have to do or refrain from doing. Policy language deals more with customs or norms that must be upheld or observed throughout the contract relationship. There are two kinds of Policy language 1) those that state the rules governing a thing, event or circumstance, and 2) those rules that address the scope, meaning, or duration of the contract or provision.
To better understand the Language of policy, here is a quick example of poor policy language to better policy language:
Policy Language Examples
- The ordinances of the city of St. George govern all matters arising out of this agreement (best)
- The ordinances of the city of St. George will govern all matters …(good)
- The ordinances of the city of St. George shall govern all matters.. (worst)
You should never use “shall” when drafting policy language. Policy language does not serve to impose an obligation on the parties. You would use this “policy language when drafting items that are not mandatory. It is more to establish a common ground between the parties rather than control them. The next language is the language of Declaration.
The Language of Declaration
The Language of Declaration is used to affirm facts. Declaration language is used not only to show that a fact exists, but also that an individual party is witnessing and agreeing with the fact that is being asserted. This is similar to the language of performance but it is not accompanied by a “hereby”, “herein”, “therein”, or “thereby”. Please the example below:
Declaration Language Example
- “Doyle Jones affirms that the equipment has been properly maintained” (language of declaration)
- ”Jones hereby represents and warrants that the equipment has been properly maintained” (language of performance)
- ”DJ, by the signing hereof, represents and acknowledges that he has properly maintained the equipment.” (language of performance)
Often times drafters use “represents and warrants” to introduce a fact. The words “represents” and “warrants” are terms of art. They hold a specific definition in legalese and can influence the remedy provided for by the contract. Products liability cases can turn on whether the warranty of merchantability has been breached. Thus when drafters use “warrants” interchangeably with “declares”, the issues can become problematic in determining the historical claim specific use of the word verses the contextual use of the word.
Language of Belief
The Language of Belief is a language used when the parties are unsure as to the factual accuracy of the some of the provisions stated within the contract. In the case where it can’t be determined for sure, or the parties don’t want to expend the research and effort required to verify what they think is true, or whether the factual determination cannot be determined until a future date, the appropriate language to use is the Language of Belief rather than the language of Policy as explained above. See below for an example:
Belief Language Examples
- The parties believe that the legal description is the same legal description on record at the County Recorder’s office.
- The legal description listed herein is the same as the legal description on record at the County Recorder’s office.
Language of Intention
There are some elements of a contract that parties are unable to decide by themselves. In cases where the Court or a third party will determine a provision in the contract, it is best to draft the intent of the parties so that the contract offers some bounds to an otherwise unbounded decision by a non-party. See examples of the language of Intent below:
Intention Language Examples
- ”The Parties agree for the repairman have all necessary licenses to complete the work.” (good)
- ”The repairman shall be deemed competent to complete the repair.” (not good)
Language of Recommendation
The language of recommendation is often used in “adhesion contracts”. Adhesion contracts are contracts where one side has all the bargaining power or they have a superior position to that of the other party. Courts will often construe contracts against the party with the most power. In an attempt to avoid this, drafters have tried to point out or make conspicuous certain provisions that will substantially affect the rights of the weaker party. These tactics will sometimes take the form of recommendation language. See below for an example:
Recommendation Language Examples
- Company encourages Employee to get outside counsel regarding this employment agreement, (good)
- Company recommends that Employee consult with legal counsel about the consequences of early termination of employment by Company prior to signing this agreement. (better)
Now that we have discussed the 10 different languages of contracts, as a reader you should be able to identify when a certain type of language is being used. This in turn will help the reader to discern the duties and obligations imposed and in turn the issues the provisions were meant to address. Using the correct language for drafters benefit the drafter as well as the client and makes the outcome of a disputed contract more predictable or at least narrows the issues take up less resources. If you have any questions or comments about what type of language is being used in a contract you currently have sign up for a free consultation and let Wes Winsor Law help you.
