Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2011)
I
I Drafting notes (4)
J Barker
Wordage
'land above' but merely a legal descrip- movable assets assessed in while the loan
tion of certain fixed property: and. was it accounts are assessed at?
the 'land above' which had been seen and Did not the attorney draftsman, Master
inspected, or the buildings, or both? of Wordage, mean to say merely:
Could I have inspected the buildings "The purchase price shall be allocated
without seeing them? Why then 'seen (a) as to movables RX
and inspected'? Could the draftsman not (b) as to loan accounts RY
have warranted merely:
(c) as to the shares RZ?"
(b) That the dwelling house' and other Passing without comment numerous
buildings inspected by the Buyer form similar abuses of language on pp 4 and 5
a part of the property?'?
I come to p 6 where this classic example
On page 3 I find this:
of wordy circumlocution appears:
"PAYMENT OF PURCHASE PRICE ,"INTEREST ON, PURCHASE CONPayment ~f purchase price afrmsaid shall be SIDERA nON
effected in the following manner: "
(a) In the, event of the Sellers, being able to
(a) as to the sum of RX .. '. '
comply with the provisiof/J of paragraph 3
(b) as to,the kalance ojRYinJash as fJerein-hereof and the Purchaser being able to effect
Words enslave our minds and control
our thinking because words are the counters of thought. Call a man a Nat a SAP
a Prog or a Commie and we have created
our own picture of him out of an abstraction - he is pinned to a thought; and
from our thoughts our actions stem.
Therefore words should be chosen carefully, used with economy and treated
with reverence, especially by,lawyers for
whom they are the pdncipal medium of
legal activity. '
The end product of a,lawyer~s work con',sists:mainly in arrangements of words.
I read, through a deed, of sak 9[, share~
which a· client,:~ who,is a, distinguished" after )et forth in~ tert/IS, of tberne:>!t succeeding ,paymen/in accordance with the' provisions of
member of a,learned professio,ll" hilS ,just: I,paragrapb':',.;,
" ,~
I.
,paragraph 4 hereof the purchase ,price: afore:handed}me to consider before; he signs it, Manners."milkyth,.inan, 'w.e, know;i,'and :,said'shallnpt be subject tojnterest~'· :,::;:;",
and ,under ~'Defi,lli~iof.l,s",.I read,
:,ma!lnersjri ,whatever, ,sense,'; we: use:the 'Once.-,again' the ,:price; has 'bee'n clad:-in
,,:,~org',are, bllt, ways qf dQil}g~ things" well ,gorgeous,raimenf 'like:a :locaL' Emperor
,"SOLD:""
"
, __ ", ,
(a) The is,sued,'share capita! of anfi,in XY : orill;,qut:a manner is,:unilecessary,here'. "Bdkassaand has become! (though' only
,'(Pty) LM:compriiing .100, shares of. R1,00 ,Why can the,purc}-Jase"prite not ,just,b<:: in the' headnote) ,the ~'Purchase ,.con,each;!, " " " , ; , < ' ; " , __" ; ; ,
,,,paiqinsteadiofp.rym,e1!t being effectea'?;,And ,sideration'~.
',,';
, ,'-C'» ,<,
,He,ask~ ,;~Why"of qnd i~?"Woulq not: of .:why:' musk~he:;wordage; b~:dQubled :up : Once ,again; in', various 'places1 fouuor
alone have been sufficif;n~ ?;~,;"
by ,saying 'PQth;,that ,p.aYf!1f;nt is, to ;be ,~6re'wotds; 'are' inspa?ned:wherione
I myself comment, "Why comprising, a :);p.ade ~~ashereihafter ~etJoilth~'i.and:a:lsci .' would do. " ,", I:::, ! ;,,:,",;', ' : ! ,',,"
,
word which is often used nowadays, ,:.'~in'termLoLthe':next ,sucq:eding para- .'Thus wehave:.ln;,the,event of the ~~lIe'rs'
, rightly or wrongly to mean including? Is graph"?
being able to,Comply instead of "should the
not the draftsman obscuring what he All that was needed was
Sellers comply"; and we wander once
more in a world where people effect paymeans to define and could he not have "The purchase price shall be paid
done better by saying
(a) As to RX . . .
ment in accordance with the provisions of
(a) The total issued share capital of XY (b) As to the balance of R Y , .. in cash paragraph 4 hereof instead of just "pay in
, (Pty) -Ltd consisting ,oj-tOO one-rand'shares?- '-in"terms' of'paragraph-SY"--'" '-"'''-- -" -terms of paragraph-4".
I now turn to page 3 and find a special On the same page I find also
I suggest that our colleague should have
warranty which r e a d s , ,"AJ;-LO<;;4::rJ(),N P-F.;P~T~<;;:,~AS,E.:, ':; yC<;>ntented himself with this:
'
(b) That there is residence and relative out~ . PR,ICf.,:, i'~:':;~ ':";,.', ;,' ",: ) ,yr ',:--l:tINTEREST
.
buildings erected on the land above as seen and Purchase consideration of that sold shall be (a) Should the Seller comply w!th par'ainspected by the Pu,rchaser·
ralculated in the j(;lIowing,manner,-,
,~_, gr,~ph 3 ~nd s~o.~ld the Buyer pay
My client smilesJan£h5h,ish- foi{ a; coI;j- ~'(a) movable',"assiiii ,rhFIII:beiasseSie'tj.·in'-'the':siimc ::accordiii.g ito';pafagraph 4, n01,interest
league. "Why can't I be the B~er?" he of RX
" ': ': ,; s,hflll accrue on the price.','
asks.
(b) Loan accounts shall be assessed at
He would then have said what he'meant
'''Residence I'" he says. "It sounds ,like (c) Pflrcbase price_ 01 shares shal( . ~', . a p d used twenty-one fewer words."
!
an estate agent. Why" not 'fhe' dwelling G ~'Tli(thead'not~ sp~¥k(O,tallocati~;l,biitj.rr" J:-J(?t for nothing did Charles Dickens in qis
house'?
the sentence which 'gives"ih'e' 'details of' 'novel Little Dorrit, satirize bureaucracy
And what does the:.- draftsman' ,mean by such allocatibn';we! are' confronted ',with- ,-'arid incidentally the law, under the gui~e
'relative outbuildings! ?,Relativ:e,to.what? '"calculation oUthe",p'i:ice r,::'''''' ,0,:"
'!""',~ c of'The Circumlocution Office_and imply
Does he just refei':feYallthe'"btlildiiigsP" WhY'is"the'p'ricenow'c'unibered wilNthe-' -, that when mere circumlocution invad!,!s
What is the 'land above'? Above what? fresh and grandiose appell'iiion '0f'Pur1 ;'Our use of language it simultaneously
Is it some celestial region? There is no chase Consideration? And wh~_~re_ t~e .,,~r~~se.s the}r<??,tieE~gf,t_h()':1g~! an<:i ~~en
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Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2011)
passes swiftly to influence our deeds, including, of course, our deeds of sale.
As Dickens said "Whatever was required
to be done, the Circumlocution Office
was beforehand with all the public
departmenfs in the art of perceiving
HOW NOT TO DO IT."
By "How not to do it" Dickens meant,
of course, "How to avoid doing anything whatsoever".
I pass to p 10 of this circumlocutory
deed leaving in the intervening pages,
for those that enjoy them, a choice collection of repetitive phrases and prolixities
and come to the clause headed "CANCELLA TION AND PENALTY" which
reads
"In the event of the Purchaser committing a
breach of af!)' of the terms and conditions hereof
the Sellers shall have the right to declare this
Agreement of Sale cancelled and at an end and
in that event the Sellers shall be entitled to
retain on account of such damages th~y may
have suffered the deposit of RX paid by the
Purchaser in accordance IPith the provisions
ofparagraph 3 (a) hereof and in addition shall
be entitled to hold the Purchaser responsible
for af!)' such further damages that they shall
ha/ie suffered by reason of the Purchaser's
dejaultherein"
What a choice collection of cliches and
what.a wasteful and irreverent use of
words!
"In the event of ... "
"terms and conditions hereof ... "
and so on to the end (and final determination thereof!) Ought I to nose my
wa y into this dense linguistic fog and
point out each (and every I) example of
circumlocution? Rather let me try diffidently and reverently to put the ninetynine words of the clause into plain
English using only thirty-seven words.
"Should the Buyer break this agreement
in any respect, the Sellers may cancel it
and retain the deposit of RX on account
of their damages and may also hold the
Buyer liable for any damages exceeding
RX."
So now I reach the end (and final determination) of this article.
D
Tailpiece
"Who stands accused?"
Contributed by R 5 Kaftel, attorney, Johannesburg
Recently a client of mine was involved in
an incident which ended in a manner I
personally found highly amusing. My
client has employed an African as a
servant for some twenty-eight years and
on the evening of the Day of Atonement
(Judaism's renowned day of fasting and
prayer), the servant was arrested on a
charge of being in possession of a
dangerous weapon, to wit a p<xket knife
some eight years old with a two inch
blade. Notwithstanding my client's pleas
that the matter be postponed until another day so that my client could give
evidence on behalf of the accused, a
postponement was refused, as was bail,
and my client, duly wearing his skullcap
(to attest his religious fervour?) attended
court to give evidence - Cyrano De
Bergerac would have delighted In the
ensuing duel:
The case commenced by the interpreter
misinterpreting the accused's reply to the
question posed (in Zulu - sic!): "Is that
your knife?" Answer: "Yes," as a plea
of guilty. Client interrupted to state that
the accused had not pleaded guilty and
the court hurriedly amended the said
"plea" to one of "not guilty".
Later the prosecutor attempted to introduce evidence that the knife had been
deliberately "rusted" so as to look as if it
was old whereas it "clearly" was not
aged. The accused replied that he used
the knife to peel oranges and apples and
also as his general eating utensil. Happily,
the court parried this former thrust but
the prosecutor then lunged with the
suggestion that the accused obviously
had a temper and this (coupled with the
rust?) constituted being in possession of
a dangerous weapon. Client who was
being cross-examined (wearing his skullcap), retorted with the remark that he
had seen the accused put up with client's
wife and the accused's own wife for
twenty-eight years without losing his
temper, and that spoke for itself. The
highly amused magistrate accepted this.
Finally, the accused was found not guilty
and delivered the coup de grace when the
prosecutor tendered the return of the
offensive knife by saying: "You say that
is a dangerous weapon? Then keep it,
I don't want it I"
D
IF YOU HAVE ANY PERSON WANTING TO LEAVE
MONEY TO CHARITY may we suggest that the
Cripples' Care Association of the Transvaal
(W 0 226)
be given earnest consideration as a worthy beneficiary. The gift should be bequeathed in the following form:
"I leave and bequeath the sum of R....
.. ............................... to the Cripples' Care
Associat,i0n of the Transvaal (W.O. 226) to be utilised for the maintenance and
development of its preventive, after-care. rehabilitation and transport services in
town and country area."
644
'De Rebus Procuratoriis, November 1978