LEGAL ENGLISH – 50 DOS & DON’TS

 

 

 

  1. 1.abbreviations 

 

 

In general, those abbreviations which refer to an entity, such as UK, USA, NATO should be capitalised without dots between the letters.

 

Those abbreviations which are used as grammatical shorthand, such as e.g. and i.e., are usually written in lowercase letters with dots between the letters. There are also certain terms which are referred to in speech as a single word but which are capitalised in writing. For example, NATO = North Atlantic Treaty Organisation.

 

The following are a number of abbreviations commonly used in English.

a.k.a. = also known as

AOB = any other business

B2B = business to business

B2C = business to consumer

CEO = chief executive officer

CGT – capital gains tax

Enc = enclosure

HR = human resources

c.o.d. = cash on delivery

ibid – ibidem (in the same source)

MBI – management buy-in

MBO = management buy-out

NB = nota bene

p.a. = per annum

PA = personal assistant

Viz – videlicit (namely; in other words)

WIP – work in progress

 

The following abbreviations are NOT used in English

o.a./a.o./i.a. = these three abbreviations are not used in English to express the idea of onder andere.

f.i. / f.e. = these are not abbreviations for for instance and for example.

Nr. = number is abbreviated as no.; plural: nos.

Resp. = respectively is not abbreviated in English.

c.s. = the Latin expression cum suis will not be understood.

c.q. = the Latin expression casu quo will not be understood.

q.q. = the Latin expression qualitate qua will not be understood.

 

 

 

  1. 2.advise & advice 

 

 

The verb is “to advise”, not “to advice”.

 

The noun is “advice”, not “advise”.

 

You can never say “an advice”.

 

You can never say “advices”.

 

If you use the term adviezen to refer to specific opinions or opinion letters, then you should use the term “opinions” or “opinion letters”.

 

  1. 3.advocaat 

 

 

There is no English word that is an exact translation of advocaat.  When working in English it is recommended that Dutch lawyers use “lawyer” or “advocaat”, depending on the context.

 

NOVA uses the term “advocate” for advocaat in its unofficial translation of the Advocatenwet. However, the term “advocate” is not used by practising lawyers in England or the US to describe themselves professionally.

 

  1. 4.affect & effect 

 

 

affect = make a difference to; have an effect on

effect = cause something to happen; bring about

  1. 5.and, or & and/or 

 

 

“And”, “or” and “and/or” are called conjunctions in English. In English legal style, it is important to expressly clearly whether “and’, “or” or “and/or” is meant.

 

E.g. This system ensures that property will be transferred to the purchaser free of mortgages or attachments. [“And” should have been used in this sentence.]

 

E.g. The employer and the employee are able to terminate the lease by giving written notice that is in compliance with the statutory notice period. [“Or” should have been used in this sentence.]

 

Lawyers are taught to avoid using “and/or”. It is almost always possible to use either “and” or “or”. You wont see “and/or” used in statutes, for example.

 

 

 

With experience, you’ll find you don’t need and/or. But more than that, you’ll find that and/or can be positively dangerous. About half the time, and/or really means or; about half the time, it means and. All you have to do is examine the sentence closely and decide what you really mean. …. The danger lurking behind and/or is that the adversarial reader can often give it a skewed reading …. Courts, by the way, have routinely had extremely unkind words for those who use and/or. Bryan Garner in Legal Writing in Plain English.

 

 

  1. 6.behoudens 

 

 

Behoudens is often translated as “subject to”.

 

“Notwithstanding” is not the same thing as behoudens.

 

Behoudens het bepaalde in de wet can be translated as “unless provided otherwise in Dutch law”.

 

  1. 7.beslag / attachment 

 

 

Most dictionaries and books written in English on Dutch law use “attachment’ as the translation of beslag. It is useful if you are using the term attachment, to also explain the Dutch process in some detail.

 

For example, in the situation of a conservatoire beslag, the translation “Notice of Obligation not to Dispose of Property” may be of more assistance to an international reader than “Conservatory Attachment” or “Prejudgment Attachment”. This will explain to your reader that the beslag is more of the nature of a notice than a court order.

 

When you use the word “attachment”, be aware that your reader may think that you mean “seizure” or a court order of some kind.

 

In the UK, “attachment” is only really used in the sense of “attachment of earnings”. “Attachment of earnings” is called “garnishment” in the US.

 

  1. 8.bodemprocedure 

 

 

In the Anglo-American world, applications or motions for preliminary judgment or interim remedy are generally made once litigation has commenced. There are specific terms for the equivalent of a kort geding (motion; application, etc), but there is no specific term for the equivalent of a bodemprocedure. This is usually translated as the “action”, “claim”, “proceedings” or some similar term. To refer to a bodemprocedure specifically in the context of an interlocutory or preliminary motion or application, terms such as “the main action”, “principal proceedings” or “proceedings on the merits”.

 

  1. 9.brackets 

 

 

It is common for Dutch lawyers to insert brackets into the middle of words and phrases. For example:

 

This is prone to misinterpretation and should not be used in English legal writing. English speakers are not used to seeing brackets used this way in formal writing, and are not sure what it means. They tend to think that the information has been put in brackets as an aside or as a matter of informal interest, and not because it is important. For example, an English speaker will think that a (law) firm is a law firm, and you’ve added “law” to help explain what you’re referring to.

 

For example:

 

 

A simple construction such as “contract(s)” may be used, in the sense of “contact” or “contracts”. However, instead of writing “(some of) the documents”, an English speaker would write “all or some of the documents”.

 

  1. 10.business buzzwords 

 

 

Business buzzwords are typical phrases used by English-speaking lawyers and business people in the course of daily working life. It is a difficult area of English usage to master, and there are two reasons for this.

 

The first is that the buzzwords or phrases are often extremely euphemistic and may not appear at first sight to have any connection with what they are supposed to mean or describe.

 

The second is that they are constantly changing. New words and phrases are constantly appearing and old ones dropping out of use.

 

Here are a few common ones:

 

Adminispere – upper levels of management that are known for making stupid or impractical suggestions.

 

Blamestorming – a meeting to agree who should be blamed for something that has gone wrong. This is of course a pun on the long-established phrase for brainstorming.

 

Bleeding edge – something extremely new, more so than if it where merely cutting edge.

 

Bobbleheading – group head-nodding when the boss talks.

 

Carbon-based error – a mistake made by a human being.

 

Little ‘r’ me – send me a personal answer to an e-mail.

 

Offline – to discuss something in person or on the phone, rather than via e-mail, or to deal with something after a meeting.

 

Plutoed – a project relegated to lower status.

 

Stickiness – a web page quality that captures people’s interest. Hence sticky content.

 

Thought grenade – an explosive good idea.

 

There is no ‘l’ in team – individual interests must be sacrificed to the needs of the team.

 

Thinking outside the box – roughly, this involves not thinking like you normally do but pretending to be someone much smarter.

 

Viral marketing – a marketing campaign that spreads very quickly.

 

 

  1. 11.can / may 

 

 

Dutch speakers working in English often use “can” in situations where “may” would be more appropriate.

 

“Can” expresses the idea of “ability”. In legal English, “can” is best reserved for use in the sense of “is able to” or “is capable of”.

 

“May” is used to express entitlement or possibility.

 

Expressions such as “can be capable” and “could be able” are not proper English because you are repeating the idea of “can” twice.

 

  1. 12.capitalization 

 

 

A few capitalization examples:

 

If someone’s title goes before or after the name, then it is capitalized.

 

But in other situations, a title is not normally capitalized.

 

 

    1. 10.claim (1) – idioms using claim 

 

 

Using claim:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    1. 13.claim (2) - usage 

 

 

Common mistake:

 

“Claim” is a word that is used in several quite different ways in English. Lawyers use the term “claim” in ways that one does not find in ordinary English. “Claim” is not always used in the same ways as its Dutch equivalents vordering, aanspraak maken and claimen.

 

Claim = state something in dispute (ordinary English)

 

Claim = assert or demand as one’s right (ordinary English)

 

Claim = request under an insurance policy (ordinary English)

 

Claim = assert as one’s own (ordinary English)

 

Claim = right (legal English)

 

Claim = right to a judicial remedy (legal English)

 

Claim = request for a judicial remedy (legal English)

 

 

    1. 14.competent and competence  

 

It is common in Europe when speaking of power or authority, whether it be a court or other body, to use the word competence. This sounds odd to English ears, because competence applies to persons and refers to their basic ability to do their jobs and manage their lives.

 

In law, competence is an individual’s qualification to do something, i.e. a competent witness. A defendant is also referred to as being competent to stand trial.

 

Instead of using the term competent court, consider using jurisdiction, authority, appropriate or leaving it out all together.

 

    1. 15.conditions  

 

 

There are a number of ways to express conditions in English:

 

In contracts and other formal legal writing, use “if” to express conditions.

 

Use “when” if the condition is something that may occur with regularity.

 

Use “in the event of” if you wish to express the condition without a subject or verb.

 

Never use “in case” to express a condition.

 

Avoid provisos starting with “provided” or “provided that”.

 

Be careful of conditions that involve an English translation of the “overleg”. Make sure that it is clear whether agreement is required or not.

 

If possible, avoid sentences that contain more than one condition.

 

    1. 16.cost  

 

 

“Cost” is usually in the singular when referring to a single expense. “Costs” is quite common in English, but should be used in situations involving multiple payments.

 

It is usually “cost of”, not “costs for”.  

 

“Fee” is usually the term used in English to describe the amount charged by a lawyer for his or her legal services. Payment made by a lawyer to a third party and then claimed back by the lawyer from the client is called a “disbursement”.

 

“Costs” is a term in litigation meaning the legal expenses of a party. When a court or tribunal says that “costs” have been “awarded to” or “ordered against” one of the parties, it is referring to one party paying the other’s legal expenses.

 

    1. 17.counsel & council  

 

 

Counsel = raadsman, raadslieden (counsel is both singular and plural)

Council = raad (council’s is the plural)

 

Works council = ondernemingsraad

 

    1. 18.damage & damages  

 

 

“Damage” should not be confused with “damages”.

 

“Damage” is used in 3 ways:

 

The term damages has a technical legal meaning: compensation awarded by the court.

 

Often compensation is a better translation for schadevergoeding than damages, because schadevergoeding does not necessarily include court-awarded compensation.

 

Avoid using the word damages to mean financial loss, because technically it means the compensation awarded by the court for the financial loss.

 

Be aware of the translation problems with immateriële schade and materiële schade.

 

Types of damages in English law:

 

    1. 19.Doublets and triplets  

 

 

There is a curious historical tendency in legal English to string together two or three words to convey what is usually a single legal concept. Examples of this include null and void, fit and proper, perform and discharge, dispute, controversy or claim, and promise, agree and covenant. These are often call doublets or triplets.

 

They should be treated with caution, since sometimes the words used mean, for practical purposes, exactly the same thing (null and void) and sometimes not quite the same thing (dispute, controversy or claim).

 

Modern practice is to avoid such constructions where possible and use single word equivalents instead. For example, the phrase give, devise and bequeath could be replaced by the single word give without serious loss of meaning.

 

However, it is still quite common to see certain typical doublets and triplets in certain legal documents. Some of the most common are listed below (with suggested equivalents in brackets).

 

Able and willing (=able)

Agree and covenant (=agree)

All and sundry (=all)

Authorise and direct (=authorise)

Cancelled and set aside (=cancelled)

Custom and usage (=custom)

Deem and consider (=deem)

Do and perform (=perform)

Due and owing (=owing)

Fit and proper (=fit)

Full and complete (=complete)

Goods and chattels (=goods)

Keep and maintain (=maintain)

Known and described as (=known as)

Legal and valid (=valid)

Null and void (=void)

Object and purpose (=object or purpose)

Order and direct (=order)

Over and above (=exceeding)

Part and parcel (=part)

Perform and discharge (=perform or discharge)

Repair and make good (=repair)

Sole and exclusive (=sole or exclusive)

Terms and conditions (=terms)

Touch and concern (=concern)

Uphold and support (=uphold)

 

 

    1. 20.Dutch Civil Code & Dutch law 

 

 

The Burgerlijk Wetboek is referred to as the Dutch Civil Code or the Netherlands Civil Code.

 

The Dutch Civil Code is broken down into Books, Titles, Articles, paragraphs and subparagraphs.

 

The following style is ordinarily used when referring to the Dutch Civil Code:

 

Other formats include:

 

In general, the English translation of the name of a Dutch statute should be that listed by MBZ at europa.eu.int/eurodicautom.

 

Only if the year is formally a part of the name of the Dutch statute, should it be included in the English translation of the name.

 

At the first mention of the English name of a Dutch statute, the Dutch name is set in italics and within brackets.

 

Do not use the § sign when referring to Dutch legislation in English.

 

A useful style to use when referring to Dutch statutes:

 

 

    1. 21.Dutchisms  

 

 

Here are a few English words that are often used incorrectly.

 

Dutch word                Dutchism        real meaning of Dutchism        correct English word

ad   ad  reklame   re

agenda          agenda  agenda van vergardering diary; calendar

balans   balance balans (weegschaal)  balance sheet

bezig met  busy with druk aan   working on; engaged in

boekjaar  book year -    financial year

concept  concept conceptie   draft

consequent  consequent voortvloeiend          consistent

consignatie  consignation -    consignment

convenant  convenant -    covenant

criterium  criterium -    criterion

eventueel                eventual        uiteindelijk                        possible; any

globaal         global  mondiaal   roughly

hoge Raad  High Court rechtbank in Engeland        Supreme Court

informeren naar inform about -    inquire about; ask about

map          map  kaart    folder

procedure  procedure procedure (method)  proceeding

restitueren  restitute herstellen   refund; repay; reimburse

solvabilitiet  solvability oplosbaarheid   solvency; financial strength

statuten  statutes  wetten    articles of association

statutair  statutory wettelijk   under the articles of association

uiterlijk                ultimately        uiteindelijk                        no later than

 

    1. 22.dwangsom & boete / fine and penalty 

 

 

In the Dutch legal system, the distinction between a dwangsom and a boete is an important one.

 

The term fine is roughly equivalent to a boete, but penalty or periodic payment do not express the idea of dwangsom. One option is an explanatory phrase such as, “penalty paid for each day of non-compliance”.

 

    1. 23.effect & effective  

 

 

The following are all expressions that can be used to describe when something is in effect from a specific date.

 

The following are used to describe a situation where something goes into effect sometime in or during a certain period.

 

These terms are used to describe a situation of ongoing effect:

 

If you want to describe something that is in effect from a limited period:

 

 

    1. 24.EU law and documents  

 

 

It is always a good idea to refer to Europa.int.eu to see how a law or document is properly referred to in English.

 

In brief, EU law should be cited as follows:

 

Primary legislation

 

Secondary legislation

 

Avoid abbreviating Article to Art. wherever possible.

 

Official Journal

 

Bulletin and General Report

 

Court and cases

 

Cases from before establishment of CFI in 1988:

 

Cases since the establishment of the CFI in 1988:

 

White papers & Green papers

 

Other policy statements and other communications