Do You Speak Legalese?

This article was written by Martin A. Schwartz, Partner at the law firm Bilzin Sumberg, and is reprinted here with his permission. His primary area of focus is Real Estate law and he can be reached at 305-350-2367 or

Peter Morris’ comments: As someone who must read, and interpret, leases and purchase and sale documents daily I agree with him. I add the word “interpret” because of the ambiguity in most documents. In some cases, the drafter of the document inserts words specifically so the true meaning of the concept can be read in multiple ways. I call these ‘wiggle words’, and I root these out for my clients whenever possible. Three (3) Cheers for Martin for his clear thoughts on this matter in his article that starts now.

Each profession has its own jargon but most professions rely on modern English as their base. Real estate and other transactional lawyers, those who draft legal documents, seem to be the exception. This is a strange phenomenon since most litigators, those attorneys who write only for fellow lawyers (i.e., judges), seem to have little problem writing in modern English. However, most real estate and other transactional lawyers whose work-product involves nonlawyer parties, usually find it difficult to express their thoughts in modern English. Instead, they rely on a strange language referred to as “legalese” to convey their message.

Merriam-Webster defines “legalese” as follows: “the language used by lawyers that is difficult for most people to understand; legal jargon.”1 The Oxford Guide to Plain English describes it somewhat differently:

“Fog in the law and legal writing is often blamed on the complex topics being tackled. Yet when legal texts are closely examined, their complexity seems to arise far less from this than from unusual language, tortuous sentence construction, and disorder in the arrangement of points. So the complexity is largely linguistic and structural smoke created by poor writing practices.

“Legalese is one of the few social evils that can be eradicated by careful thought and disciplined use of a pen. It is doubly demeaning: first it demeans its writers, who seem to be either deliberately exploiting its power to dominate or are at best careless of its effects; and second it demeans its readers by making them feel powerless and stupid.”2

William Safire, a former op-ed columnist with The New York Times, describes it more humorously: “[L]egalese often has the virtue of eliminating ambiguity, and should be read more as a mathematical equation than as prose, anything herein to the contrary notwithstanding.”3

Legalese is a language that relies on archaic language, poor grammar and sentence structure, repetition, surplus language, and legal jargon. The predicate for use of legalese seems to be that the parties will be represented by attorneys, and their attorneys will understand the documents even if their clients cannot. Although such an assumption may assist in promoting legal employment, it appears no more defensible than having legal documents written in Arabic in reliance on the parties using persons familiar with Arabic to explain the contents of the documents to their clients. Since legal documents will govern the rights and obligations of the parties for whom they are written, it seems only proper that such parties should be able to read and understand them. The use of legalese has been criticized by the courts: “[This is a] document checked full of legalese that can make a Byzantine scholar proud.”4

Some legalisms seem to be going out of vogue. Does anyone use “the party of the first part” and “the party of the second part” to reference the parties to an agreement? Use of these terms allows the drafter to avoid identifying the parties throughout the document, but to an untrained reader, it may be unclear which party is obligated to which obligations under the agreement.

Other terms seem to have survived the transition from the age of the bow and arrow to that of automatic weapons. Many drafters continue to use terms like “witnesseth” and recitals preceded by the term “whereas.” Frequently, last paragraphs in agreements conclude with “In witness whereof.” One may well wonder if such drafters think it is essential their documents look like legal proclamations intended to be admissible in the English courts of the 14th century or be in a form sufficient to be affixed to the nearest tree. And what about title affidavits that conclude with the phrase “further affiant sayeth naught”? This last phrase adds nothing to the affidavit that a period at the end of the preceding sentence would add, but it does perhaps provide the drafter with the comforting feeling that the affidavit is a “legal document.”

Attorneys do not seem to question why is it necessary to use language from the age of Shakespeare to express their thoughts. Such archaic language is nowhere else found in modern writing, and it surely does not improve the readability of the document in which it is contained.

Another tenet of legalese involves repeating numbers with Arabic characters and in words. It might not be necessary to provide for “a ten (10) day notice” rather than “a 10-day notice” but a reader seeing both the character and word will appreciate that he or she is reading a legal document. This has been referred to as the “stupid reader syndrome” since it appears to be predicated on the assumption that the reader will not be able to understand a number if it is only mentioned once. A danger, however, of this needless repetition sometimes appears in documents when the character and word do not match, e.g., “ten (15) day period,” which presents an interpretive problem as to which number is correct. This needless repetition is so engrained in the legal vocabulary that a request to a legal secretary to transmit two copies of a survey will appear as “enclosed are two (2) copies of the survey.”

Perhaps the hallmark of a legal document is the inclusion of “h” words. The words “herein,” “hereto,” “hereof,” and “hereinafter” are the staples of drafting in legalease. These words, other than “hereinafter,” defy precision because it is never clear whether they are referencing a particular paragraph, section, or the entire agreement. Typically the use of such language requires the drafter to add a separate definitional section to clarify their meaning because of their latent ambiguity. You will not see these words used in common parlance or even in nonfiction writing except perhaps the use of “hereinafter” referencing an existence beyond the grave. But these words are typically liberally sprinkled throughout a document serving as a beacon to identify the document: “This is a legal document!”

Another frequent device for drafting in legalese is the use of the expression “provided, however, that….” This phrase serves to introduce an exclusion to the immediately previously expressed idea. Although one may substitute a period for this entire phrase and follow with the start of a new sentence with the same effect, the use of this term allows the draftsperson to establish his or her credentials as a lawyer and, as a side benefit, permits drafting run-on sentences galore. One can test the elimination of this phrase by substituting a period before “provided, however, that…” and determine its absence has no effect on the meaning of the paragraph but only serves to increase its readability.

Legalese embraces repetition: one word is good; six words are better. Why refer to the “provisions” or “terms” of an agreement when you can mention the “terms, provisions, covenants, agreements, representations, and warranties” of an agreement? Would anyone without legal “training” think that the terms of an agreement would not include any representations, warranties, or covenants in the agreement? I think not, but verbosity is a preferred drafting technique.

Another form of repetition frequently utilized is couplets: two words used in conjunction when a single word will convey the same message. Frequently used couplets include: “terms and provisions,” “good and valuable,” “covenants and agreements,” “free and clear,” “each and every,” and “any and all.” Many attorneys sprinkle these liberally into their drafting so the reader will understand the document was drafted by a lawyer.

Related to repetition is the inclusion of unnecessary extra language. In referring to exhibits and schedules in a document, the drafter will frequently qualify such exhibits or schedules with the phrase “attached hereto and incorporated herein by reference.” It is not clear whether such a phrase has any legal effect. Would a reader think that an exhibit or schedule appearing at the end of a document and referenced in the document might be a stapling error? That is, it was never intended to be part of the agreement. Or that such documents were merely attached to the document to increase its length?

The use of legalese is perpetuated by reuse of form documents replete with legalese. New lawyers instructed to use form documents are inculcated into the use of archaic language, repetition, and run-on sentences. It has been noted that there is no economic incentive to “clean up” these documents by spending extra time merely for the sake of readability.5 Even lawyers conscious of the use of legalese frequently avoid removing such language in the haste to produce a document for distribution. Will Rodgers famously noted, “If I had more time, I would have written a shorter letter.”

There is a perception among new lawyers, and even among seasoned lawyers, that writing in plain English dumbs down the language of the instruments. This is surely the case in some consumer forms in substituting “I” and “you” for “buyer” and “seller.” However, in response, it has been noted that:

“[W]riting in plain English need not mean giving up sophisticated use of language and affecting a chatty informality. On the contrary, it requires sophistication to produce documents that are consistently coherent, clear and readable. By contrast, this “specialized tongue” of lawyers, “legalese,” may even be easier to write because it relies on convention instead of thought. At best, however, the result is wordy, pompous, and dull. At worst it is unintelligible.”6

Does legalese really improve the content? As an example of how legalese affects readability, below are two short paragraphs. The first is written in English and the second re-written in legalese.

Jim had the flu and went to see Dr. Jones. The doctor told Jim he would be better in 10 days if Jim stayed home, drank liquids, and slept for eight hours each night. If his condition did not improve by the end of 10 days, the doctor said he would prescribe antibiotics.”

Jim had the flu (hereinafter referred to as the “Disease”) and went to see Dr. Jones (hereinafter referred to as the “Doctor”) and the Doctor told Jim that Jim would be better in ten (10) days, provided, however, that (i) Jim stayed home, (ii) Jim drank liquids, and (iii) Jim slept eight (8) hours each night (hereinafter collectively referred to as the “Remedial Conditions”) and provided further that if by the expiration of said ten (10) day period and full and complete fulfillment of the Remedial Conditions the Disease was not fully or partially abated to the full and complete satisfaction of the Doctor, in the Doctor’s sole and unfettered discretion, then the Doctor would prescribe antibiotics.

In a survey in 1988 sent to 1,116 Florida judges and lawyers selected at random that contained six phrases written in two different styles without identifying legalese but only a “test of language trends in the legal profession,” the preparer of the survey received 628 responses: 352 came from judges and 279 from lawyers. The judges preferred plain English in 86 percent of their responses and the lawyers in 80 percent.7

The courts have been critical of the use of legalese.8 Is there any downside to use of such language? If ordinary individuals not represented by an attorney are intended to be bound by legal instruments not otherwise decipherable as written in the English language, courts have refused to enforce such agreements to the detriment of the drafters.9

Beyond the issue of enforcement, why is it necessary to draft documents far removed from common English? Why does the poor use of the English language with run-on sentences and unnecessary repetition make a document legal? In surveys of judges and attorneys, the overwhelming percentage of respondents opted for plain English over legalese.10

Any real estate attorney believing use of legalese is benign should be ordered to review and decipher language appearing in many securitized financing documents. There are numerous examples in such documents when one sentence can run an entire page.11 It is frequently impossible to understand the content of any provision with a single reading.

Consumer groups have been struggling for years to require consumer documents to be written in plain English. Since the world outside of the legal profession operates using plain English, it is difficult to justify using a different language to create enforceable legal rights and obligations. In some cases, the reward for using legalese is an unenforceable agreement.12

1 Merriam-Webster’s Learner’s Dictionary, “Legalese.”

2 Martin Cutts, Oxford Guide to Plain English (3d ed. 2009).

3 William Safire, Safire’s Political Dictionary (Rev. ed. 2008).

4 In Re Benninger, 357 B.R. 337 (Bankr. W.D. Pa. 2006). See also Gelinas v. State, 398 S.W. 3d 703 (Tex. Crim. App. 2013) (Cochran concurring opinion) (“These instructions are 100 [percent] legalese. They make no sense.”).

5 See Hills, Why Contracts are Written in “Legalese,” 77 Chicago-Kent Law Rev. 58 (2001).

6 Barbara Child, Language Preferences of Judges and Lawyers: A Florida Survey, 64 Fla. B. J. 32 (Feb. 1990).

7 Id.

8 State of Wisconsin v. Eason, 629 N.W.2d 625 (Wisconsin Sup. Ct. 2001) (dissenting opinion) (“The warrant and affidavit replete with terms normally found in attorney-drafted documents including “whereas,” “curtilage,” “to-wit” and other such similar terms. . . . Indeed law students have been taught for at least the last 50 years to avoid this kind of legalese.”); But see Bo Bingham, Lawyers Speak “Legalese” for a Reason, The Legal Lowdown (Oct. 6, 2015), (discussing the virtues of legalese).

9 See In Re Benninger, 357 B.R. 337.

10 See Kimble & Prokop, Jr., Strike Three for Legalese, Michigan B. J. 40 (Mar. 2014); Barbara Child, Language Preferences of Judges and Lawyers: A Florida Survey, 64 Fla. B. J. 32 (Feb. 1990).

For example: “‘Certificateholder’: With respect to any Certificate, the Person whose name is registered in the Certificate Register (including, solely for the purposes of distributing reports, statements or other information pursuant to this Agreement, Beneficial Owners or potential transferees of Certificates to the extent the Person distributing such information has been provided with an Investor Certification by or on behalf of such Beneficial Owner or potential transferee); provided, however, that, except to the extent provided in the next proviso, solely for the purpose of giving any consent or taking any action pursuant to this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, a manager of a Mortgaged Property, a Mortgagor or any Person known to a Responsible Officer of the Certificate Registrar to be an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, a manager of a Mortgaged Property or a Mortgagor shall be deemed not to be outstanding and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent or take any such action has been obtained; provided, however, that for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor shall be deemed to be outstanding, provided that if such amendment relates to the termination, increase in compensation or material reduction of obligations of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or any of their Affiliates, then such Certificate so owned shall be deemed not to be outstanding; provided, however, if the Master Servicer, the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer is a member of the Controlling Class, it shall be permitted to act in such capacity and exercise all rights under this Agreement bestowed upon the Controlling Class; provided, further, if an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor has provided an Investor Certification in which it has certified as to the existence of an Affiliate Ethical Wall between it and the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor, as applicable, then any Certificates beneficially owned by such Affiliate shall be deemed to be outstanding.”

12 See Paladino v. Avnet Computer Techs, 134 F.3d 1054 (11th Cir. 1988); Nicosia v. Wakefern Food Corp., 136 N.J. 401, 643 A.2d 554 (N.J. 1994).

This article was first published in the April 2017 issue of The Florida Bar Journal, Volume 91, No. 4.

The Ties That (May) Bind: ensuring letters of intent do not impose binding obligations on parties

The following article is reprinted with permission from the authors at McCarthy Tétrault. Their contact information is listed at the end, so you may contact them directly concerning this or other legal matters you may to discuss with them.

From our business perspective the three points that really stood out for those in the commercial real estate field, are the following:

1. Ideally any matters that are to be legally binding, such as a confidentiality agreement, and exclusive negotiation; should be separate from the LOI itself and needs to executed by the parties to that agreement – NOT the real estate agent, who may typically draft, and sign the LOI to advance an understanding of a negotiation.

2. Your actions, as an agent for your client, cannot be inconsistent with the intent of the LOI being non-binding.

3. Although not mentioned in this article, as we have stated many times before, it is vitally important to prominently note that the LOI is NON-BINDING, and you include a paragraph in the LOI letter noting that your client has not reviewed or approved of the contents of the LOI the agent is drafting.

Here is the article:

Non-binding letters of intent (“LOIs”), which sometime take the form of ‘indicative term sheets’ or ‘memorandums of understanding’, can be useful tools to start negotiations between parties in a commercial transaction. These documents, typically lay out the principal terms of a transaction and facilitate negotiations of a binding agreement between the parties.

LOIs are most useful when parties can set forth the main points of a proposed deal, such as the structure of the transaction or purchase price arrangements, without committing to a legally binding contract. However, recent Ontario jurisprudence confirms that, based on certain language of the LOI or the behaviour of the parties, LOIs may be interpreted as binding even where the parties explicitly intend for them not to be. As such, it is key to draft the LOI with purpose and be mindful of your actions during negotiations.

Risks and rewards of LOIs

There are several important advantages to using an LOI in the course of a transaction. Entering into an LOI signals to the parties – and in certain instances to the public – that the parties are serious about the potential deal, and it lays a foundation to further negotiation, thus creating deal momentum. An LOI also allows parties to set out their basic understanding of the key business terms they want to achieve before investing time and money into hiring a team of advisors and negotiating the full deal. The increasingly popular “Hybrid” LOIs, or LOIs that have both binding and non-binding terms, help the parties protect themselves during negotiations, such as through committing to confidentiality, exclusivity and non-solicitation terms.

Signing an LOI may also come with some hazards. Negotiating through an LOI may increase the costs and tensions of a transaction by requiring a separate round of negotiation. LOIs, which by their nature are shorter than definitive legal documents, can be internally incoherent and lend themselves to varied interpretations and expectations by the counterparties. An LOI may also create unintended disclosure obligations for reporting issuers by triggering material change and/or early warning reporting. The most critical risk of an LOI, however, is the possibility of a binding obligation being unintentionally imposed on the parties. In the private equity space, this can be of particular concern given the prevalence of investor or third party rights of first refusal that could be triggered by a party inadvertently creating binding obligations. The current case law on this issue is summarized below.

Recent developments in Ontario jurisprudence

As discussed in our recent Canadian M&A Perspectives blog post, Canadian common law courts have not formally recognized a general pre-contractual obligation to negotiate an agreement in good faith, however the Supreme Court has refrained from definitively indicating that such a duty might not be recognized in the future[1] and in certain provinces, such as Ontario, such a duty has been recognized in instances a “special relationship” exists between the parties. Our aforementioned blog post delineates a list of factors which may influence a court’s determination of whether a duty to negotiate in good faith exists on a case-by-case basis, including after an LOI has been signed.

Ontario courts have been more definitive in establishing when binding obligations may arise from a signed LOI. In Wallace v. Allen, the Ontario Court of Appeal held that an LOI must be read as a whole, with an eye to the presence of contractual language.[2] In the LOI in Wallace, the clause “this letter of intent must be reduced into a binding agreement of purchase and sale by the parties within the next 40 days” demonstrated a clear intention of the parties to be bound.[3] However, the Court of Appeal also held that general use of “the language of contract”, such as “it is agreed”, “upon acceptance” and “this agreement” created a binding implication even in the absence of language as unambiguous as the clause above.[4] The Court of Appeal also considered the behavior of the parties in making its finding. It held that the parties in Wallace behaved as though they were bound by the LOI – the seller announced his retirement upon the sale of the business, and referred to the buyer as the new owner.[5] The Ontario Superior Court recently extended this reasoning in Seelster Farms et al. v. Her Majesty the Queen and OLG, noting that contractual language may not be necessary provided that hallmarks of contractual intention – an offer, an acceptance at its inception and consideration – are present both within the wording of the LOI and the behaviour of the parties.[6] In Seelster, a contractual relationship was formed, which led the court to consider the LOI as an enforceable agreement.

Drafting considerations

Parties drafting an LOI should do so with clarity and a sense of purpose – it is key to identify at the outset which terms are intended to be binding, and which are not. The following tips will be helpful if the intention is to draft a non-binding LOI:

  • Avoid any contractual language, such as “it is agreed”, “upon acceptance”, “this agreement” or “the parties shall/will”.
  • Clearly state the conditions under which parties intends to be bound, for example by stating that a binding intent will only be crystalized in a definitive agreement and the entering into of a definitive agreement is contingent on the Recipient’s satisfaction of its due diligence review, external factors and the Recipients sole discretion.
  • Include a “non-binding” provision that expressly covers which terms are and are not intended to be binding on the parties. For example, an LOI may state that, other than the confidentiality and exclusivity clauses, all other sections are not binding on the parties and any such provisions will only be binding when incorporated in an executed definitive agreement.
  • Consider dealing with any non-generic binding provisions in a separate agreement or exempting them from the LOI, such as an exclusivity letter agreement or confidentiality agreement for example.

Making sure to “practice what you preach”

The language of the LOI, however well-drafted, is not alone sufficient to prevent binding obligations from arising. In the aftermath of Wallace and Seelster Farms, the intention of the parties to enter a binding agreement is to be determined on the entirety of the evidence. Where the parties intend for the LOI to not be binding, they must act as such. Behaviour that implies that the deal is going to happen and that negotiations are a mere formality may influence the courts to read in contractual obligations between the parties of a non-binding LOI. Any inter-related agreements will also be considered in this determination, meaning other contractual relations between the parties must not differ from the intention stated in the LOI.[7]

Post-script: Extra caution in the Province of Québec

Parties contemplating an LOI governed by Québec law should be mindful that the Civil Code of Québec provides a statutory duty of good faith which requires the parties to conduct themselves in good faith both at the time the obligation arises and at the time it is performed (as opposed to only when the obligation is performed, which is the current law in Ontario, for example).[8] In its recent August 2020 decision in Beauregard v. Boulanger, the Quebec Superior Court reiterated that an LOI is an agreement akin to a preliminary contract, and thus imposes that the parties conduct themselves in good faith.[9] That said, the obligation to act in of good faith at the pre-contractual stage does not prevent either of the parties from putting an end to negotiations that have failed or that have been carried out in bad faith by the other party. While the court ultimately found that the defendants could withdraw from the LOI, the court in an obiter explained that a party who breaks off negotiation in breach of its duty to act in good faith could expose itself to the damages suffered by its counterparty between the signing of the LOI and the breakdown of the discussions (for example, damages could include the fees and expenses of advisors incurred in that period and travel expenses). The obligation of good faith in preliminary contractual relations is particular to the Civil Code of Quebec. It has yet to be determined whether the Supreme Court of Canada decision in Bhasin v. Hrynew, [10] which recognized as a general organizing principle of common law good faith in contractual performance, extends to preliminary contractual relations.

[1]Martel Building Ltd. v Canada, 2000 SCC 60 at para. 73.

[2]Wallace v. Allen, 2009 ONCA 36.

[3]Wallace v. Allen, 2009 ONCA 36, at para 27.

[4]Wallace v. Allen, 2009 ONCA 36, at paras 29-31.

[5]Wallace v. Allen, 2009 ONCA 36, at para 34.

[6]Seelster Farms et al. v. Her Majesty the Queen and OLG, 2020 ONSC 4013, at para 175-178.

[7]Seelster Farms et al. v. Her Majesty the Queen and OLG, 2020 ONSC 4013, at para 177.

[8] Civil Code of Québec, section 1375.

[9]Beauregard c. Boulanger, 2020 QCCS 2090.

[10]Bhasin v. Hrynew, 2014 SCC 71.


  1. Daryna Kutsyna
  2. Claire Gowdy
  3. Chrystelle Chevalier-Gagnon

Here is a link to the original article: CLICK HERE

We Welcome CBRE in Vancouver BC as our newest client

We are very proud to count the Vancouver BC office of CBRE as our latest training client. We are propelling the prosperity of their newer agents by offering a series of ‘Lunch and Learn’ micro-training events this month.

This training focuses on technical aspects of getting the business, commercial leasing processes and investment sales.

We really enjoy their enthusiasm and eagerness to become the best at what they do! We are definitely getting them off on the right foot.

We Welcome Royal LePage is Our Latest Training Client

We are honoured to announce that Royal LePage, Canada’s largest real estate brokerage by number of agents, is our latest commercial real estate training client. In addition, Royal LePage agents will be offering their commercial tenant clients our unique tenant focused lease advisory services.

Look for additional details coming soon.

New Client: Medicine Hat Real Estate Board

We are very proud to now be associated with the Medicine Hat Real Estate Board. This small board has contracted with Greenstead Consulting Group to present a number of commercial real estate courses in 2018. In order to keep the client’s budget restrictions in mind we have developed two types of courses:

  1. A series of six or seven, one-hour daily webinars held consecutively (Monday to Friday) to cover longer courses such as the Masterguide to Leasing program; and
  2. short one-hour webinar courses, such as the Masterguide to Writing a Leasing Letter of Intent.

By using a webinar format the Medicine Hat Real Estate Board saves on the travel, accommodation and meal expenses typically associated with an in-person training event. It also makes participation in the courses very affordable for their members.

During the series courses, participants have email access to the instructor during the run of the course schedule to ask questions and obtain clarifications. This creates an intimate Q&A session between the instructor and each participant, where the participant doesn’t feel embarrassed by asking their question. This is a common participant concern when they are in front of peers during an in-person event.

Participants receive email access to the instructor for the first 12 hours after the short, one-hour webinars for an individual Q&A session.

Members of the Medicine Hat Real Estate Board will register with the board directly for the courses they wish to take, and pay the Board their registration fee. The Board retains a portion of the registration fee for their promotion of the courses and the administration of the registration process.

The Board has no other costs as all other logistical costs, such as the webinar hosting, are borne by the  Greenstead Consulting Group.

Please CONTACT US if you would like to learn how we can create a similar program for your Real Estate Board or Association.