It is very tempting to assume that Latin terms and phrases so loved by jurists would form a cross-border language understood by lawyers and judges all around regardless of colour or creed or legal system. Indeed, it would be a great comfort to our treasured concepts of universal justice (not to mention the need to understand foreign colleagues in other languages) but alas, it is not to be.
Excessive Latin in legal documents and especially contracts can only result in confusion and frustration. Although Romans contributed a great deal to modern legal systems with their legal teachings, their Latin words have been reinterpreted, adjusted and mispronounced for so many centuries that their true precision and effect is often lost in the mists of time. Indeed each system or jurisdiction today seems to prefer to indoctrinate its own unique tried and true phrases at the local law schools. For the English law student it was always settled law that the ejusdem generis rule of interpretation keeps “exempli gratia” out of most contracts and that in criminal matters the principle of domus sua cuique est tutissimum refugium applied (at least sometimes). But who understands this. Thus, what should always have been the Esperanto of the law, has often become a Tower of Babel of confusion.
What happens when a common law lawyer’s rescission ab initio was confronted with the German colleagues’ ex tunc, or when culpa in contrahendo could not equate with promissory estoppel. Why do Americans and Australians sometimes understand the contra proferentum rule differently for limitation of liability cases? The confusion is even greater if you add non-legal, non-native speakers and a further third party language with bizarre pronunciations. So would a business person anywhere in the world understand a contractual award of property ex aequo et bono for all parties or could a French customer forgive an English service provider for offering to pay money in lieu of performance? I am not so sure…it’s enough to drive a lawyer to seek garden leave.
Certainly, foreign terms (and legal jargon) do not serve always to promote understanding and clarity. And it doesn’t matter if the words are of Latin, French or even English origin. If you are working in English, say it in English, but make sure it’s plain English.* Contracts are there to be understood…not admired for their complexity. Otherwise, it may be a true case of volenti non fit injuria for each word drafted!
*http://www.plainenglish.co.uk/campaigning/past-campaigns/legal.html has more information on Plain English and the law. Inaddition, a useful guide to basic Latin phrases and terms can be found at http://legum.org/