Legalese or plain language a corpus based study on the language of adhesion

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW GRADUATION THESIS B.A DEGREE IN ENGLISH Major: Legal English LEGALESE OR PLAIN LANGUAGE?: A CORPUS-BASED STUDY ON THE LANGUAGE OF ADHESION CONTRACTS Supervisor: NGUYEN THAI SON, MA Student: TRAN HOANG MY NGOC Student ID: 1952202010039 Class: 112-LE44(A) Ho Chi Minh City, 2023 ACKNOWLEDGEMENTS Looking back on the long journey of my graduation thesis, I am incredibly fortunate to be among the students who had the opportunity to undertake this thesis The journey toward the result of this thesis is an invaluable pursuit, despite the numerous difficulties and encounters along the way Instead, this is the journey to self-development and acquiring a wealth of academic knowledge However, I recognize that achieving the best result would not have been possible without the unwavering support of my supervisor, friends, and family, whose continuous encouragement propelled me toward constant improvement Therefore, I want to express my sincere gratitude to everyone who has supported, guided, and assisted me throughout my academic journey and the completion of this graduation thesis First and foremost, I would like to extend heartfelt gratitude to my supervisor, Mr Nguyen Thai Son, for his wholehearted guidance throughout the process of my graduation thesis I can confidently assert that the aphorism "Không thầy đố mày làm nên" (Without your teacher, dare you to succeed) is accurate I could not have fully completed this graduation thesis without my supervisor's guidance and encouragement I am grateful for his belief in my capabilities His expertise, profound knowledge, and unwavering encouragement were instrumental in my journey toward success With his dedicated support and invaluable lessons, he guided me in tackling research problems, constructing a comprehensive and effective research methodology, and ultimately enabling me to produce a thesis of remarkable quality, of which I am immensely proud While words themselves may not adequately express the extent of my gratitude towards my supervisor, I would like to sincerely convey my profound appreciation for his guidance throughout my graduation thesis Secondly, I am sincerely grateful to my family for their unwavering mental support throughout my journey toward completing my graduation thesis Their emotional and moral encouragement played a pivotal role in bolstering my strength and resilience, enabling me to overcome moments of anxiety and self-doubt Their belief in me and my abilities was a constant source of motivation, instilling the i confidence to strive for excellence Their presence in my life has been a constant source of comfort and reassurance, and I genuinely appreciate the unwavering support they have extended to me Moreover, I am also thankful to my friends, whose unwavering support, resources, and facilities were indispensable for completing this graduation thesis Among them, I would like to express my special appreciation to Quang Huy, an automation engineer who played a vital role in assisting me with creating a coding system that greatly aided in data processing The access to state-of-the-art materials, equipment, and facilities provided by my friends has significantly facilitated the research process and enabled me to accomplish my research goals Finally, I want to express my appreciation to other cherished individuals, whom I cannot entirely mention, who contributed to my academic and personal growth Their guidance, feedback, and support have been invaluable in shaping my journey as a student at Ho Chi Minh University of Law ii LIST OF ABBREVIATIONS EU European Union LPC Law on Protection of Consumers’ Rights SEC The Securities and Exchange Commission UK United Kingdom VCA The Vietnam Competition Authority iii LIST OF TABLES AND PICTURES Table Synthesis of selected features Table Description of the corpus design Table Average number of words per dot Table The prevalence of relative clauses and conjunctions in contract corpus Table Frequency of archaic terms in contract corpus Picture Icon of AntConc 4.2.0 Picture Graphical user interface of AntConc 4.2.0 Picture CountDot Program Picture Example of insurance policy (using lists and numbering) Picture Example of insurance policy (visual cues) iv TABLE OF CONTENTS ACKNOWLEDGEMENTS i LIST OF ABBREVIATIONS iii LIST OF TABLES iv CHAPTER 1: INTRODUCTION 1.1 Background to the study 1.2 Research question 1.3 Significance of the study 1.4 Scope of the study 1.5 Methodology 1.6 Structure of the research CHAPTER 2: LITERATURE REVIEW 2.1 Legalese 2.1.1 Legalese in general 2.1.1 Legalese in contract 11 2.2 Plain English 14 v 2.2.1 Previous Findings and Recommendations 14 2.2.2 Synthesis of selected features 17 CHAPTER 3: DATA AND METHODOLOGY 20 3.1 Data 20 3.2 Methodology 22 CHAPTER RESULTS AND ANALYSIS 25 4.1 Design and layout 25 4.2 Grammar 26 4.2.1 Lengthy sentences 26 4.2.2 Complex sentences 27 4.3 Vocabulary 29 CHAPTER 5: CONCLUSION AND SUGGESTIONS 32 REFERENCES 34 APPENDICES 37 APPENDIX 1: 38 APPENDIX 2: 41 APPENDIX 3: 50 APPENDIX 4: 53 vi ABSTRACT The use of legalese has led to the emergence of the Plain English movement, which aims to simplify the language used in the legal field, particularly in contracts Despite extensive discussions on guidelines for more effective drafting, adhesion contracts still pose specific challenges and face resistance to reform efforts This is a study of legalese and plain English within collected adhesion contracts, including banking, insurance, and employment sector With an approach drawing on corpusbased research, the study aims to examine to what extent the drafters of sellected adhesion contracts applied the plain English rule, primarily focusing on the lexical and structural patterns, including design and layout, grammatical structures, and archaic words The findings indicate that collected adhesion contracts have shifted towards using plain English, employing modern design strategies, eliminating outdated words, and adopting a concise writing style However, compared to the banking and insurance sectors, employment still tends to use more archaic terms, potentially influenced by legal traditions This difference can be explained by prioritizing effective customer communication in the banking and insurance industries They recognize the significance of conveying complex financial concepts and terms in a manner that is easily comprehensible to the general public The results of this study support previous linguistic studies, which have recognized and recommended substituting problematic elements of legal text with plain English alternatives (Diamond et al., 2010; Adler, 2016; Boginskaya, 2020) However, further research should be undertaken concerning the other linguistic patterns and usage in various types of contracts to broaden the research scope Furthermore, incorporating qualitative research methods such as interviews or focus groups with contract users and legal professionals could provide valuable insights into their perceptions and experiences with different linguistic aspects of contracts Keywords: Plain English, Legalese, Legal language, Adhesion contract vii CHAPTER 1: INTRODUCTION 1.1 Background to the study Gibbons (2003) asserts that every area of expertise possess a distinct set of language characteristics Legalese or "the customary language used by lawyers in common law jurisdictions where English is the official language" (Mellinkoff, 2004), is notoriously employed by legal professionals and individuals involved in legal proceedings, including jury members, lay judges, and administrators Despite being primarily derived from ordinary language, legal language possesses distinct features that make it suitable for legal purposes (Tiersma, 1999; Mellinkoff, 2004; Tiersma & Solan, 2012) In other words, although legal language shares similarities in grammar and vocabulary with everyday language, it differs in syntax, terminology, and writing style These are due to the historical development of the law and its tradition-bound nature Legalese has evolved to incorporate established conventions and norms, contributing to its unique character However, because legal professionals are trained to understand and navigate this specialized language (often archaic), legalese can create barriers for the lay public (Tiersma & Solan, 2012) Over the centuries, lawyers have faced criticism regarding their technical and conservative writing style, which has even become a source of amusement and derision In 1596, an "incident" highlighted efforts to address an excessively verbose document submitted to an English chancellor's court Remarkably, the chancellor ordered a hole cut through the center of the lengthy 120-page text Furthermore, he decreed that the document's author should have their head inserted through the hole Subsequently, this unfortunate drafter was led in a procession throughout Westminster Hall, serving as a public spectacle for those in attendance at the court This incident is pointed out by Kimble (2023) as a testament to the long-standing concern and disapproval surrounding the intricacies of legal writing and the need for clarity and conciseness within the field In addition, Judge Edward (1992) also expresses strong criticism, using terms like "appalling" and "awful," regarding the overuse of legalese in writing It can be said that dissatisfaction with legal language is not limited to outsiders, as lawyers themselves have expressed a strong dislike for it (Martínez et al., 2023) When considering the language of contracts, the potential legal consequences of this concern become more evident, as it can lead to disputes or detrimentally impact the parties' interests Consumers cannot understand the contract's terms, and citizens often struggle to comprehend the complexities of the law (Black, 1981; Hoffman, 2009) The distinctive characteristics of the contract are highly exceptional An eminent English judge, Lord Mansfield, once remarked that "the majority of conflicts in the world stem from linguistic expressions." Numerous legal conflicts arise from ambiguous contract language, even when attorneys have been careful in their drafting A notable case exemplifying this issue is O'Connor v Oakhurst Dairy in 2017 In this case, delivery drivers sued for unpaid overtime wages The dispute centered around whether the drivers were covered by an exemption for "packing for shipment or distribution" under Maine's wage and overtime law The appellate court found an ambiguity in the statute's language and interpreted it to refer to a single activity of "packing." Since the drivers did not engage in "packing," they were not covered by the exemption While some contracts are negotiated between parties with relatively equal bargaining power, others are designed to favor one party over the other Adhesion contracts are widely used as a principal legal instrument to fulfill their intended purpose, and this format has become an integral component of commercial transactions and relationships (Patterson, 2010) An adhesion contract is a type of agreement that presents the terms and conditions to the other party on a "take it or leave it" basis This type of contract has become ubiquitous in daily activities, including mobile phones, insurance, banking services, gym memberships, and other social activities Several rationales can explain the rise in the use of these contracts Using adhesion contracts can result in lower contracting expenses, including the expenses of negotiating and drafting the contract (Ben-Shahar, 2007) However, it possesses both benefits and drawbacks Due to the absence of mutual negotiation, adhesion contracts need more meaningful consent from the adhering parties regarding Example 40 APPENDIX 2: According to Martin Cutts (2020), if an excessive number of terms from the left column of the word list are utilized in the writing, it may be perceived as verbose, cumbersome, and lengthy While there is no explicit prohibition on their usage, incorporating suitable alternatives can assist the drafter in achieving brevity, simplicity, and a conversational tone However, it is crucial to note that the substitute options may not always be synonymous, thus necessitating careful consideration of their meaning and the specific role they fulfill within the sentence Instead of Consider using accede agree, grant, allow accentuate strengthen, emphasize access [verb] enter, use, gain entry accordingly so accountability responsibility accustomed to used to acquaint yourself find out, read, learn about additional more, extra address [sense ‘consider’] tackle, deal with, consider advices information, instructions advise [sense ‘inform’] inform, tell, let [me] know aforementioned, aforesaid [omit or be specific] aggregate [noun] total alleviate ease, reduce, lessen allocate give ambiguous more than one meaning ambit scope annuity pension, lifetime income 41 annul cancel apparent clear, obvious applicant [use ‘you’ where possible] apportion split, divide between/among apprise inform, tell, let [me] know appropriate (adjective) suitable, right, proper as a consequence of because of ascertain find out assist, assistance help attain reach attribute [verb] earmark brainchild idea burgeoning growing, increasing category group cease stop, end cognizant of aware of, know about cohort group [with shared characteristics] collaborate work together, work with commence start, begin commencement date start date commensurate with consistent with component part 42 compulsory required, you must concept idea concerning about consequently so considerable large constitutes makes up, forms, is construct [verb] build construe interpret corroboration evidence, proof, support deduct take away, take off, subtract deem treat as, consider defer put off, postpone deliverables results, outputs, what we’ll provide designate name, specify desist stop despatch send despite the fact that although, despite determine decide determine [legal sense] end, terminate detrimental harmful disburse pay 43 discharge [verb] pay off, settle disconnect [verb] cut off discontinue stop, end due to the fact that as, because dwelling, domicile* home, property egress exit, way out elect, election choose, choice emanate from come from, stem from endeavour try, attempt enhance improve entitlement right envisage expect, imagine, forecast, think equitable fair erroneous wrong, mistaken establish set up, create, form eventuate result, occur, happen exhaustive complete expedite hasten, speed up expenditure spending expiration end facilitate help, aid 44 failure to if you not for the duration of during, while for the purpose of to forward [verb] send, give frequently often fundamental basic furnish give, provide furthermore also henceforth from now on heretofore until now herewith with this hitherto until now hypothecate earmark if this is not the case if not if this is the case if so impart give, pass on, tell, inform implement [verb] carry out, in accordance with in line with inasmuch as because, in that inception start incidence rate of occurrence, how often 45 in conjunction with with increment step, increase indebtedness debt indemnify fully protect against loss ingress entry, way in, comes in initiate begin, start in lieu of instead of in order to to in receipt of get, have, receive, receiving in regard to about, concerning, on insofar as as far as institute [verb] begin, start interim [noun] meantime, for the time being in the event of if, when in the eventuality of if, when in view of the fact that as, because irrevocable cannot be reversed or changed juncture point, time mandatory required by law, (you) must manner way monies money, amounts of money 46 necessitate need, have to, require nevertheless even so, however, yet nonetheless even so, however, yet not less than (ten) at least (ten) not more than (ten) (ten) or less, (ten) or fewer notwithstanding even if, despite, still, yet, but obtain get, receive onus burden, duty other than except particulars details, facts persons people perpetrator (alleged) wrongdoer/ offender peruse read or study carefully, examine polemical controversial predominantly mainly principal [adjective] main, chief prioritize rank prior to before provenance source, origin provided that if provisions [of a law, policy] the law, the policy 47 purchase buy purport [verb] pretend, claim, profess pursuant to under reduction cut, cutback regarding about reimburse repay remittance payment remuneration* pay, wages, salary remunerative employment paid work render send, make, give representations comments reside live residence* home, property, address save [conjunction] except shall [legal obligation] must stipulate state, set, lay down subsequently then, later sufficient enough supplementary extra, more terminate end, stop the law provides that the law says 48 thereafter then, afterwards the way in which how timeously in good time tranche slice, portion, share, chunk utilize use verify check, prove whensoever when, whenever whereby by which, because of which whilst while wilfully deliberately within in with reference to about, concerning with regard to about, concerning with respect to about, for, concerning * In some contexts, words like remuneration, domicile, and residence have technical meanings and shouldn’t be replaced by the alternatives 49 APPENDIX 3: According to Martin Cutts (2020), the table below presents a compilation of Latin or French expressions that drafters should consider or avoid when drafting adhesion contracts due to their antiquated nature On the right side, alternative terms are provided to replace the Latin or French expressions, assisting in the clarification of the contracts Term from Latin or French [F] Meaning or alternative term ad hoc for this purpose or occasion propos de [F] about, concerning, with respect to bona fide in good faith carte blanche [F] freedom, you are free to x cause célèbre [F] controversial cause ceteris paribus other things being equal cf (confer, imperative of conferre) compare circa (c.) about de minimis trivialities, small amounts e.g (exempli gratia) such as, for example en bloc [F] as a whole, together en suite [F: ‘in succession’] bathroom in, or adjoining, a bedroom etc (et cetera) and so on, and the rest ex officio because of the office held faux pas [F: ‘false step’] social slip/mistake, etiquette error fin de siècle [F] end of the century 50 ibid (ibidem) in the same place, book, etc.; same source i.e (id est) that is in situ in its current place/position, where it is now inter alia/alios among other things/people loc cit (loco citato) in the passage cited above modus operandi way of working, method mutatis mutandis with the necessary changes op cit (opere citato) in the work quoted per annum per year, a year, annually per capita per head, per person, each per diem per day, a day, daily per se as such, by or in itself, essentially persona non grata unacceptable or unwanted person per stirpes [through the roots] distribution to representatives of the dead p.p (per procurationem) on behalf of, by the agency of pro forma a form QED proved as required q.v (quod vide) see seriatim one at a time, in the same order [sic] thus! (pointing out an error) sine die indefinitely 51 vice instead of vis-à-vis [F] as regards, regarding, on, about viz (videlicet) namely vs (versus) v, versus, against v.s (vide supra) see above 52 APPENDIX 4: Sources for insurance policies: ● https://aar-insurance.com/ke/ ● https://www.rbcinsurance.com/personal.html ● https://www.ecclesiastical.com/ ● https://www.hdfclife.com/ ● https://www.aig.ie/ ● https://www.nbc-insurance.ca/ ● https://healthsourceri.com/ ● https://doi.nv.gov/ ● https://www.aainsurance.co.nz/ ● https://www.chubb.com/vn-en/ ● https://myurbanjungle.com/ ● https://www.maxlifeinsurance.com/ ● https://www.aviva.com/ ● https://www.bajajallianzlife.com/ ● https://www.hsbc.co.uk/ Sources for banking service agreements: ● https://www.consumerfinance.gov/ Sources for employment contracts: ● https://www.sec.gov/ 53 ● https://www.samedical.org/ ● https://www.mogiespub.com/ ● https://www.hsbc.co.uk/ ● https://www.calpnetwork.org/ ● https://www.unifi.it/ ● https://circabc.europa.eu/ ● https://www2.gov.bc.ca/gov/content/home ● https://polosingapore.dole.gov.ph/ ● https://www.mohr.gov.my/index.php/ms/ ● https://www.expat-finland.com/ ● https://www.labour.gov.hk/ ● https://www.rochester.edu/ ● https://www.iit.edu/ 54