"[The tenant
shall] when where and so often as occasion requires well and sufficiently ...
repair renew rebuild uphold support sustain maintain pave purge scour cleanse
glaze empty amend and keep the premises and every part thereof ... and all
floors walls columns roofs canopies lifts and escalators ... shafts stairways
fences pavements forecourts drains sewers ducts flues conduits wires cables
gutters soil and other pipes tanks cisterns pumps and other water and sanitary
apparatus thereon with all needful and necessary amendments whatsoever
...".
This is rampant
verbosity, a verbosity which makes the clause far more difficult to read than
its subject matter requires. Probably, the verbosity was prompted by a desire
to be legally precise. If so, it failed, because the clause still ended up in
court in a dispute over meaning. This demonstrates one of the great
misconceptions of traditional legal drafting - that somehow a complex,
traditional style is more precise than modern, plain language.
As you will know,
this traditional style is not unique to English law and practice. It is found
in all countries where English is the language of the law. One Australian lease
which crossed my desk some time ago featured a tenant's repairing covenant -
one single sentence - containing 424 words. If you looked hard you would find 2
commas, but no other punctuation. (Lack of punctuation is a hallmark of
traditional legal drafting.) Lord Hoffmann once called this style of legal
drafting "torrential". In leases it is nothing short of endemic. Commercial
leases, in particular, commonly run to 50 or 60 pages, making them impossible
for lay readers to comprehend and forcing lawyers to trawl through reams of
turgid prose to advise clients about the obligations the documents
contain.
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2.
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Norwich
Union Life Insurance Society v British Railways Board [1987] 2 EGLR 137 at
138. |
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