Coode’s analysis

Coode explained the elements of legislative expression in the following terms:

THE EXPRESSION of every law essentially consists of, – 1st, the description of the legal Subject;

– 2dly, the enunciation of the legal Action.

To these, when the law is not of universal application, are to be added,

– 3dly, the description of the Case to which the legal action is confined; and,

– 4thly, the Conditions on performance of which the legal action operates.

Coode viewed the law as imposing rights, privileges or powers and corresponding liabilities and obligations on those who must confer the rights, privileges or powers. The four elements in detail are:

(a) The legal subject

The legal subject is the person on whom a right, privilege or power is conferred or a liability or obligation is imposed. Coode said:

Now, no Right, Privilege or Power can be conferred, and no Obligation or Liability imposed, otherwise than on some person.

The PERSON who may or may not or shall or shall not do something or submit to something is the legal subject of the legal action.

This principle remains valid today. It is vital that a legal sentence should identify the person who is to take the legal action. For example:

The buyer shall pay to the seller the purchase price on 1 December 2001.

The legal subject, namely the buyer, is identified in relation to the duty he must perform (the legal action), that is, payment of the purchase price. The sentence should not leave the identification of the legal subject to be drawn by inference from other provisions in the document, as in the following example, which does not refer to the vendor:

The purchaser shall receive the purchase price on 1 December 2001.

Some further examples in which the legal subject is referred to in relation to the legal action are:

The Landlord agrees with the Tenant to keep the main structure and electrical and gas supplies in repair and to keep heating and water supply apparatus supplied by the Landlord in repair.

The Trustees may insure against any loss or damage from any peril any property for the time being comprised in the Trust Fund for any amount and pay the premiums out of the Trust Fund.

Contrast these examples with the following clauses which do not identify the legal subject and, therefore, leave uncertainty as to who is to exercise the power or duty:

Notice shall be given in writing.

This clause does not identify the legal subject, that is, the person who must give the notice. It may be possible to infer, from other provisions in the same document, who is supposed to give the notice, but this is undesirable because, in some cases, it could lead

to a construction of the clause which is different from that intended.

Another example is:

Trustees may be appointed or removed by deed.

This clause fails to state who is to exercise the power to appoint or remove trustees. It may be obvious to a trusts lawyer that, under s 36 of the Trustee Act 1925, the power is with the trustees, in the absence of any express reference to the person who is to exercise the power. However, this type of drafting is unacceptable because it results in a document which is uninformative to a reader who is unaware of the provisions of the Trustee Act 1925. He will probably need to seek legal advice on who has the power. In many instances, drafting of this kind is the result of carelessness. If, in the last example, the settlor had intended to retain the power of appointment and removal to himself, the act of carelessness would have lost him an important control over the trustees of the settlement. Even if it is unlikely that a failure to refer to the legal subject would result in prejudice to anyone, the habit of referring to the legal subject should be adopted if only to make the contents of the clause clearer and less impersonal and, perhaps, avoid an omission of the legal subject when it is critical. For example:

Employees will be entitled to maternity/paternity leave.

This would be much clearer if drafted as:

The Employer shall give Employees maternity/paternity leave.

(b) The legal action

The legal action is a statement of the right, privilege or power or the obligation or liability conferred or imposed on the legal subject. On this, Coode said:

The legal action is that part of every legislative sentence in which the Right, Privilege or Power, or the Obligation or Liability, is defined, wherein it is said that a person may or may not, or shall or shall not do any act, or shall submit to some act.

As the legal subject defines the extent of the law, so the description of the legal action expresses the nature of the law. It expresses all that the law effects as law.

Coode was of the opinion that the legal subject and the legal action were the essential elements of every legal sentence and without them, no law could be written. Again, this point remains valid today.

For example:

The Employer will engage the Employee as a sales manager.

In this sentence, the only elements are the legal subject and the legal action. These are:

• legal subject: the Employer;

• legal action: will engage the Employee as a sales manager.

Another example in which the only elements are the legal subject and the legal action is:

My Executors shall pay £10,000 to X.

• Legal subject: my Executors;

• legal action: shall pay £10,000 to X.

A failure to state the legal action fully is not uncommon. For example:

The seller may terminate the contract by giving notice.

It is likely that the notice must be given to the buyer, but the clause should have stated this. The clause should also have stated the period of notice to be given and whether it should be written.

Coode also pointed out that the legal action should be clearly apparent on a preliminary consideration of the sentence. He said:

The legal action should immediately appear on inspection of the sentence. No good enactment requires to be covered up in deceptive language, or involved in a preamble, or got by implication from terms used in the description of the legal subject ...

(c) The case

The case is a statement of the circumstances in which a provision is to operate. Coode advised that the case to which the clause is confined should be expressed at the beginning of a sentence, because it would be misleading to begin a provision in a way which indicated that it was of universal application and to conclude with qualifications or provisos which restricted its scope. A reader would only discover at the end of the clause whether it was applicable and, if it was not, would have wasted time in reading it. He said:

... wherever the law is intended to operate only in certain circumstances, those circumstances should be invariably described BEFORE any other part of the enactment is expressed.

Coode then added bluntly:

If this rule were observed nine-tenths of the wretched provisos, and after limitations and qualifications with which the law is disfigured and confused, would be avoided, and no doubt could ever possibly arise, except through the bad choice of terms, as to the occasions in which the law applied, and in which it did not.

As Coode indicates, the case states the circumstances which must arise before a provision can operate. It is only when the legal subject is to perform the legal action in limited circumstances that the case must be stated. For example:

My Trustees shall pay my son, John, £50,000.

This clause comprises only the legal subject and the legal action which are:

• legal subject: my Trustees;

• legal action: shall pay my son, John, £50,000.

If the payment is to be made in particular circumstances, such as John attaining age 21, this would represent the case. The clause might be drafted as follows:

When my son, John, attains the age of 21 years my Trustees shall pay him the sum of £50,000.

This clause may be analysed as follows:

• case: when my son, John, attains the age of 21 years;

• legal subject: my Trustees;

• legal action: shall pay him the sum of £50,000.

Despite Coode’s advice, sometimes – especially where the clause is a short one – it will be appropriate to place the case at the end of the clause. For example:

My trustees shall pay the sum of £50,000 to my son, John, when he attains the age of 21.

The following clauses are to operate only in the circumstances set out as the case at the beginning of each clause. The first is from a credit-token agreement, and relates to loss or misuse of a credit card, while the second is from a contract of employment and deals with absence through sickness:

If a card is lost or stolen or a card is for any other reason liable to be misused, you must immediately notify us.

This clause may be analysed as:

• case: if a card is lost or stolen or a card is for any other reason liable to be misused;

• legal subject: you;

• legal object: must immediately notify us.

In the event of absence on account of sickness or injury the Employee (or someone on his behalf) must inform the Employer of the reason for the Employee’s absence not later than the end of the working day on which absence first occurs.

This may be analysed as:

• case: in the event of absence on account of sickness or injury;

• legal subject: the Employee (or someone on his behalf);

• legal action: must inform the Employer of the reason for the Employee’s absence not later than the end of the working day on which absence first occurs.

(d) The conditions

This is a statement of any conditions or restrictions which must be satisfied before a provision applies. Coode said of conditions:

Alaw ... may ... operate only on the performance by some person of certain conditions. It is not till something has been done that the right can be enjoyed, or that compliance with the obligation can be enforced, or that the liability can be applied.

The following clauses contain conditions which must be satisfied before the legal subject must or may perform the legal action. In addition, each clause contains the case and, therefore, comprises all four elements of legislative expression:

Where the Tenant fails to execute a repair specified in a notice served under clause 12 hereof, the Landlord or his agents may enter the premises and carry out that repair.

• Case: where the Tenant fails to execute a repair;

• condition: specified in a notice served under clause 12 hereof;

• legal subject: the Landlord or his agents;

• legal action: may enter the premises and carry out that repair.

A further example is:

Where the seller terminates the contract because he is unable to supply the goods, the seller will refund to the buyer all sums paid by the buyer under the contract.

• Case: where the seller terminates the contract;

• condition: because he is unable to supply the goods;

• legal subject: the seller;

• legal action: will refund to the buyer all sums paid by the buyer under the contract.

Coode pointed out that conditions should be drafted with care so that they do not import either more or less by way of condition than is necessary. Too much by way of condition could defeat the acquisition of rights or imposition of obligations, whilst too little

could result in rights being obtained too readily or obligations being imposed in onerous circumstances. In either instance, the client’s instructions would not have been followed.