I have been reading The Elements of Eloquence by Mark Forsyth (author of the Etymologicon) in which he explains and illustrates some of the figures of rhetoric. I was struck by how many of these are beloved of lawyers and contract writers, without their users even being aware that they are using classic forms of persuasion.
The Balance in Contracts
For many contracts, there is insufficient trust (or too many lawyers) to allow self-regulation of the respective obligations of the parties. So the aims of the project or task are enforced through contractual procedures and incentives. The balance is between carrot & stick.
Collaborative contracts seek mutually agreed routes to manage issues, for example the use of early warning notices under NEC4. But most focus on ‘argentum ad baculum’ which means threatening someone with a stick, ie adding a penalty for not complying. NEC4 has its own stick in the form of a strict requirement for the contractor to notify an event for which it seeks compensation within 8 weeks – without which notice the contractor is not entitled to more money or more time.
There is a massive list of these structural and literary devices, but this post focuses on those seen in contracts and also how you can use or avoid them, depending on your purpose.
This means explaining all the parts of an item rather than naming the item. As Forsyth says (chapter 4) “…the true and natural home of merism is in legal documents. Lawyers are like Cole Porter and Alfred Lord Tennyson with a blender. A lawyer, for a reason or reasons known only to him or herself, cannot see a whole without dividing it into its parts and enumerating them in immense detail. This may be something to do with the billing system… The lawyer’s lucky phrase is ‘including but not limited to’; which gets you out of the utterly unnecessary trouble that the utterly unnecessary merism got you into in the first place.. “
Merism searches for wholes, and leaves holes.
Example: If prior to the expiry of the Term a Sub-Contractor ceases to be involved in the Project for whatever reason (including but not limited to the termination of its Sub-Contract)… [JCT PBA 2016, clause 5.1]
Ken Adams says that the phrase ‘including but not limited to’ is generally interpreted restrictively in the US (read more).
2. Periodic sentences
These are very big sentences which is are not complete until the full stop, and from my reading of contracts, appear rather too often.
Example: IChemE Red Book contains a number of prime examples including clauses 6.3 (site conditions), 7.1 (statutory obligations) or 8.3 (intellectual property).
These are preposterously long sentences or more poetically “huge rococo sentences filled with trap-doors and secret passages and little subordinate clauses dancing around”. As Forsyth says (chapter 11):
The long sentence is now a ridiculed rarity, usually hidden away in the Terms and Conditions, its commas and colons, clauses and caveats languishing unread and unloved.
Example: Although not extremely long, clause 2.17.1 of JCT DB 2016 is unnecessarily long when it merely adopts the common law standard of reasonable skill and care in relation to the Contractor’s design (if any).
I explored the magic in three in my blog on the art of writing readable contracts (read more) but didn’t realise (a) it had a specific name and (b) it was a figure of rhetoric.
Example: The Contractor warrants, acknowledges and undertakes… [collateral warranty, read more on its interpretation]
There are many variations of this in contracts; it stems from a lack of brevity ie when lawyers use unnecessary words and duplication to emphasise their intended meaning and ensure the court interprets a term exactly as they wish.
Examples range from the nearly inoffensive such as ‘enter into’, ‘enclosed herewith’ and ‘if emergency compliance with statutory requirements necessitates’ [2.16.1 JCT DB 2016] to more elaborate structural issues such as starting each clause in an agreement with “The parties hereby agree…”.
Congeries means a heap or, for our purposes, piling up nouns into a list. This is not a good example of writing like we speak, or parataxis (next blog), as we rarely talk in lists.
Example: the Contractor’s warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operations, or normal wear and tear and normal usage [AIA A201-2007, paragraph 3.5.1, read more]; see also each application, approval, consent, confirmation, counter-notice, decision, instruction or other notification [JCT DB 2016, clause 1.7.1]
It seems to me that many of our contracts include sentences which are a form of catachresis, which means a sentence that “makes you stop, scratch your head and say ‘that’s wrong’, before you suddenly realise that it’s right.” But they are not used as a deliberate figure of rhetoric, merely as a lazy way of writing the actual intention of the parties.
Which of these figures of rhetoric are your contracts guilt of? And, more importantly, why?