There is a mystique about the mining industry in the minds of laymen, due in large part to the specialized terminology of the industry. So it is with law. Certain lawyers preen themselves with the use of legalese which, quite often, they themselves are unable to explain to the inquisitive layman. Unfortunately, sometimes the “mysterious” legal words and phrases will crop up in agreements. Often they are dismissed by the explorationist on the bais that they are legalese and obviously necessary — why else would the lawyer have included such terminology?
Legalese is not necessary — if you do not know what a word or phrase in an agreement means or why it has bee inserted, then ask. Do not accept an explanation that you do not clearly understand and agree with.
It may seem to be an odd concept, but you may have to teach your lawyer about legalese. Start talking to your lawyer some time about adits, declines, drifts, crosscuts, winzes, glory holes, etc.,,and suggest that you may need an agreement relating to one or more of these subjects. Then carefully note the reaction. No doubt you will find yourself being subjected to a detailed cross-examination on what you are talking about. In other words, the shoe will be on the other foot — your lawyer will be caught with terminology lacking. Remember how your lawyer carries out this cross-examination to determine the meaning of what to him or her is a new word. Store this worthwhile experience away for future use.
In order to save a couple of lawyers from being subjected to intense client cross-examination, it may be of interest to look at a few esoteric words and phrases that may appear in legal agreements or elsewhere:
* Mutatis mutandis — This is a form of legal shorthand that saves the draftsman from repeating long provision. It will be used where a detailed provision has been drafted and appears in an agreement and, farther into the document, a provision is required similar to the first one but applicable to slightly different circumstances. Rather than repeating the detailed provision and altering it to apply to the different circumstances, the draftsman can merely cross-reference back to the earlier provisions and provide that they will be applicable, mutatis mutandis. The phrase can also be used to incorporate by cross-reference the provisions of a completely separate agreement. The advantage to the client is that once the provision is in acceptable form, it does not have to be reread each time it is required in the agreement.
* Constating documents — These are the documents that create or establish an entity, such as a corporation. For a corporation, these would include the provisions of the enabling legislation, the articles of incorporation (or letters patent) and all amendments to them and, probably, the organizational proceedings and amendments to them.
* Attorn — This word will appear where an agreement is to be governed by the laws of a foreign jurisdiction. A party that is not ordinarily subject to such laws will attorn to them and submit to the jurisdiction of the courts of the foreign jurisdiction with respect to any matters that may arise under the agreement. If a party has attorned a judgment rendered in the foreign jurisdiction, the judgment will usually be enforcable in the foreign party’s home jurisdiction without the necessity of further extensive court proceedings in the home jurisdiction. This can be important — there is no sense in having a judgment for damages that is only enforceable in a jurisdiction where the foreigner has no assets.
* Enure or Inure — Both spellings of this word are correct. It is an archaic word that still appears in most agreements in the provision stating that the provisions of the agreement will be “binding upon, and enure to the benefit of, the parties and their respective successors and assigns.” It merely means to take effect or operate with respect to the identified person.
* De novo — This phrase refers to starting afresh from the beginning. In court proceedings, it means that you are not appealing an earlier decision but, rather, that you must prove your case all over again as if there had not been earlier proceedings.
* De jure — This refers to something as being according to the law, as opposed to de facto, or, according to the facts. These phrases can arise in many situations. For example, where defining a subsidialry or controlled corporation is necessary, de jure control refers to the legal right to elect a majority of the directors (i.e., holding more than 50% of the outsanding shares), whereas de facto control means actual control, i.e., holding the controlling block, which may be well less than 50% of the voting shares.
* Inter alia — This again is a form of legal shorthand, but in this case it could be said almost as briefly (but much less impressively) as “among other things.” It will be used where reference is made, say, to one of several subjects covered by an agreement and the draftsman does not want the reader to think that the subject referred to is the only subject matter of the legal agreement.
* Pari passu — This refers to something being done ratably or without preference. The use of the phrase indicates that one party will not receive a preference over any other party.
* Caveat emptor — This as an oldtimer and is probably the legal maxim most quoted by laymen. It means “let the buyer beware.” In other words, it is up to the buyer to satisfy himself that he is getting what he thinks he is getting. If he does not carry out approrpriate tests or investigations and then gets less than he thought he was getting, it is his or her problem.
* Sell, transfer, assign and convey — You will often see an agreement that transfers property setting forth all these words. Interestingly, they do have distinct meanings or implications, and lawyers put them all in out of an abundance of caution. Sell indicates that cash consideration has been given. It refers to tangible property and does not extend to a barter. Transfer is a generic term connoting delivery of the property involved to the transferee. Assign refers to the transfer of intangibles and convey refers to a transfer by deed under seal. In the strict legal sense, all of these words connote a transfer of all right, title and interest of the transferor in the property. From a practical point-of-view, any one of these words would suffice.
* Hereditaments — You will not see this one much any more but it certainly sounds impressive. It refers to things that are capable of being inherited. We have corporeal hereditaments, which are substantial permanent objects that may be inherited, usually in association with real property (the word “land” includes these). And there are incorporeal hereditaments, which are “anything, the subject of property, which is inheritable and not tangible or visible” (Black’s Law Dictionary). With a definition like this, one may realize why lawyers are sometimes obtuse!
There, you have some legalese of your own, but, as there is a growing tendency in the legal profession to draft agreements in “plain” language, you may well miss the opportunity to cross-examine your lawyer or, better still, to exercise your knowledge in his or her presence. On the other hand, you may find it handy as an attention-getter at your next cocktail party.
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