Technical legal terms

5.7.1 General considerations

There are few, if any, areas of law that do not possess technical legal words or terms which are well understood by lawyers familiar with that area of law. Sometimes, these words or terms may be known to non-lawyers because they are in general use. For example, most non-lawyers are likely to understand technical legal words such as ‘lease’, ‘landlord’, ‘tenant’, ‘contract’ or ‘will’.

However, the vast majority of technical legal words and terms will not be properly understood by non-lawyers, for example, words and terms such as ‘deed poll’, ‘intestate’, ‘equitable interest’ or

‘bailment’.

The use of technical legal words and terms is sometimes criticised as legal jargon or legalese. As is indicated below, 5.8, there is justification for this criticism where technical legal language is used to excess or where it is inappropriate. However, the use of technical legal words and terms is necessary and appropriate in some instances in order to communicate the concepts with which a legal document is concerned both accurately and effectively.

5.7.2 Construction of technical legal words and terms If technical legal words and terms are used in a legal document, they will be construed by the court primarily as having their technical legal meaning. In Holt v Collyer (1881) 16 Ch D 718, Fry J said:

In my view the principle upon which words are to be construed in instruments is very plain – where there is a popular and common

word used in an instrument, that word must be construed prima facie in its popular and common sense. If it is a word of a technical or legal character, it must be construed according to its technical or legal meaning ...

The rule that the court will construe technical legal words and terms according to their technical legal meaning is particularly important if a legal document has been drafted by a lawyer. In such circumstances, the court will conclude that they were used in their technical legal sense. This point was alluded to by Diplock LJ in Sydall v Castings Ltd [1967] 1 QB 302 in his explanation of the importance of technical legal words and terms in law. He said:

... lawyers ... have been compelled to evolve an English language, of which the constituent words and phrases are more precise in their meaning than they are in the language of Shakespeare or of any of the passengers on the Clapham omnibus this morning.

These words and phrases to which a more precise meaning is so ascribed are called by lawyers ‘terms of art’, but are in popular parlance known as ‘legal jargon’. We lawyers must not allow this denigratory description to obscure the social justification for the use of ‘terms of art’ in legal documents. It is essential to the effective operation of the rule of law. The phrase ‘legal jargon’, however, does contain a reminder that non-lawyers are unfamiliar with the meanings which lawyers attach to particular ‘terms of art’.

If a lawyer drafts a will which provides ‘all my money to my nephews and nieces in equal shares’, the term ‘money’ will be construed in its technical legal sense as referring to ‘cash’ and not in its popular sense as including all the testator ’s property.

However, the cases show that if a non-lawyer prepares a legal document using technical legal words, they may be construed in their popular sense if there is evidence showing the popular meaning was intended. In Perrin v Morgan [1943] AC 399, the House of Lords accepted that a direction in a home-made will that

‘all moneys I be possessed of shall be shared by my nephews and niece now living’ was, on the evidence, intended to be a gift by the testatrix of all her property using ‘money’ in the popular sense. In contrast, in Re Cooke [1948] Ch 212, a gift in a home-made will of

‘all my personal estate’ was construed in the technical legal sense and did not include the testatrix’s house. Harman J said:

The words ‘all my personal estate’ are words so well known to lawyers that it must take a very strong context to make them include real estate ... In the absence of something to show that the phrase ought not to be so construed, I must suppose that she used the term ‘personal estate’ in its ordinary meaning as a term of art.

5.7.3 Use of technical legal words and terms

There are two main factors which influence the use of technical legal words and terms in drafting a legal document.

(a) Nature of document

The extent to which technical legal words and terms are used in a legal document will depend on its nature and purpose. If its purpose is to communicate rights and obligations to consumers, the use of technical legal words and terms should be kept to a minimum and if they are unavoidable they should, where appropriate, be explained in language the reader is likely to understand. For example, an agreement for the hire of a car or a residential tenancy agreement should avoid technical legal words and terms.

If, however, the document is intended mainly for use by other lawyers as, for example, a settlement, it may be assumed that they are aware of the legal meaning of technical legal words and terms used. Indeed, they are likely to read the technical legal words and terms as used in their technical legal sense.

If the document will be referred to mainly by non-lawyers, who have expertise in the field to which it relates, it is likely that they will understand most, if not all, the technical legal words and terms in that field so that their use would be appropriate. For example, a commercial lease is likely to be consulted by lawyers and surveyors who are likely to understand the technical legal terms used in leases.

(b) No suitable non-legal term

Technical legal words and terms have an established and precise meaning, as Diplock LJ pointed out in Sydall v Castings Ltd [1967]

1 QB 302 (above). They should only be replaced by non-technical terms if the latter will not result in a loss of precision, or would not result in the possibility of a different construction to that desired. If it is felt that either of these consequences might follow, technical legal words or terms should be preferred.

For example, it would be difficult to find suitable alternatives for

‘goodwill’, ‘frustration’ or ‘per stirpes’ as used in the technical legal sense. In the case of ‘per stirpes’, there is no suitable non-technical term available to act as a convenient substitute to indicate distribution by stocks of descent. To seek to explain the concept it embodies in alternative non-technical language would risk uncertainty. Another reason for using technical legal words and terms is because what may be perceived to be alternatives in fact have different technical legal meanings. For example, the terms

‘children’ and ‘issue’ require care in drafting a will, since the expression ‘issue’ is wider than ‘children’ and includes descendants of any degree. Thus, a lawyer who is instructed to draft a will leaving the testator’s residuary estate to his ‘children’ in equal shares would not have fulfilled his instructions in drafting the gift as one to the testator’s ‘issue’ in equal shares.