A Brief Study of the Linguistic Characters in Contractual English.doc

毕业论文A Brief Study of the Linguistic Characters inContractual English1. Introduction12. The Definition of Contract and Contractual English22.1 The Definition of Contract22.2 The Definition of Contractual English33. The Linguistic Features of Contractual English43.1 The Lexical Features43.1.1 Formality43.1.2 Archaism63.1.3 Accuracy73.1.4 Parallelism of Synonyms and Near-Synonyms73.1.5 Modal Auxiliaries103.1.6 Terminological Vocabulary123.1.7 Avoidance of pronouns133.2 The Syntactic Features143.2.1 Long and Complicated Sentences143.2.2 Flexible Sentence Structure163.2.2.1 Adverbial Clause163.2.2.2 Attributive clause173.2.2.3 Nominal Structure193.2.2.4 Prepositional Phrases213.3 Other features of Contractual English233.3.1 Passive Sentences233.3.2 Simple Present Tense243.3.3 Words-and-Numerals approach used to convey numbers253.3.4 The Capitalization of Some Nouns in Contract254. Conclusion26References281. IntroductionSince the adoption of the policy to promote reform and opening to the outside world, an increasing number of companies and factories has participated in the foreign trade business. After Chinas entry to the World Trade Organization (WTO) in 2001, China has been enjoying rapid development of foreign trade with countries around the world. When doing business with individuals or other organizations from English speaking or non-English speaking countries, contracts written in English are usually signed among all parties involved in the deal in order to ensure the fulfillment of obligation and the enjoyment of rights which are indicated in the contract. Thus, English contracts have become an indispensable part of todays business life.William Murray once said, “Most of the disputes in the world arise from words.” (Net.1.) His comment informs us that language is a key issue full of sensitivities. Though there have already been some books, such as Investigating English Style written by David Crystal and Derek Davy, The Elements of Legal Style written by Bryan, A. Garner, Introduction to English Stylistics edited by Wang Zuoliang, Ding Wangdao, dedicated to the subject which is the same as the authors, yet insufficient practical use has been addressed. The author of this paper will direct this dissertation to give the readers an overall account of the linguistic features of contractual English, so as to offer some guidelines to contract drafters and contract-drafting learners.2. The Definition of Contract and Contractual English2.1 The Definition of ContractIn Law Dictionary, Steven H. Gifts defines the word contract as “a promise, or a set of promises, for breach of which the law gives remedy, or the performance of which the law in some way recognize as a duty” (杨英, 2005).L. B. Curzon defines contract in his A Dictionary of Law as “a legally binding agreement” (杨英, 2005).In Contract Law of the Peoples Republic of China adopted in 1999, contract is defined in 2nd Article as “an agreement between natural persons, legal persons or other organizations with equal standing, for the purpose of establishing, altering, or discharging a relationship of civil rights and obligations” (杨英, 2005).2.2 The Definition of Contractual EnglishEach business or corporation tends to develop its own jargon (Net. 2). Before discussing what is Contractual English, a key notion must be set up that the English language, spoken in many countries, has varieties as a result of region division, vocation division and science division. These varieties overlap one another in linguistics mainly. Like scientific and technological English, medical English, commercial English, financial English, advertising English, and so on, legal English also overlaps with all these English varieties and those not cited in this paper. Yet, one thing must be pointed out is that legal English is a category of applied linguistics, which is professional English with legal professional technical features. Contractual English is commonly regarded as a category of legal English, which is used to draft contracts not only between English-speaking countries, but also between English-speaking countries and non-English-speaking countries. 3. The Linguistic Features of Contractual EnglishAccuracy, precision, sobriety in language are the three most important characteristics in any kind of contract. Aesthetic and gorgeous words should be avoided in drafting a contract.Below are the linguistic features of Contractual English, which will be discussed in terms of lexicon, syntax.3.1 The Lexical Features When drafting a contract, the drafter must bear seven basic requirements of the words written in the contract in the mind: formality, archaism, accuracy, parallelism of synonyms and near-synonyms, modal auxiliaries, terminological vocabulary, and avoidance of pronouns.3.1.1 FormalityIt is the formality of style that distinguishes Contractual English from the ordinary English written or spoken in daily life. According to his famous theory in the book The Five Clocks, Martins Joos classified the style of English language into five levels: “the frozen style”, “the formal style”, “the consultative style”, “the casual style”, “the intimate style”(1961). It is the frozen style, the highest degree of formality, that to which the Contractual English belongs. There are a great number of formal words in Contractual English. Here is only a proportion listed as follow:Ordinary WordsFormal Wordsaboutwith regard toaroundapproximatelybeforeprior tobegin/startcommence/initiateendterminateexplainconstruefinishcompletein case ofin event oftellinform/notifyuseemploy(李丽, 2005)The formality also can be seen in sentences, for example:. This Contract shall be governed by and construed in accordance with the laws of China (Net 3). The Agreement shall commence on this day and automatically terminate upon the bankruptcy or insolvency of either of the parties hereto (张惠清, 2007). The term “Effective date” means the date on which this Agreement is duly executed by the parties hereto (Net 3).The formality of Contractual English now reveals itself by the above words and sentences in a sense. The phenomena that people are not familiar with the formal vocabulary is mainly due to people learn the meanings of the word and, therefore, use these words that they frequently encounter in their daily life. Only after contract drafters get acquaintance with the formal vocabulary can they employ these words in drafting contracts without so many difficulties as the normal people do.3.1.2 ArchaismArchaisms are old-fashioned words which point to another part of the text in which they are found, or to another place or time (Gibbons, 2003: 41). Usually, they are the Old and Middle English words. The former is the language existing before the Norman Conquest and down to 1100 A.D., while the latter covers the period from 1100 A.D. to about 1500 A.D. . Unlike other kinds of language, Contractual English still retain its style that has almost been dropped out by present-days daily language. Contractual English refuses to change its style in that it is a branch of legal English, as said above, which is conservative. Hiltunen pointed out in his Chapters on Legal English: Aspects Past and Present of the Language of the Law (1990) that “Language changes continually, but the language of the law is conservative, tending to resist change and changing”. Lawyers tend to hold the belief that archaisms enable clearer and less ambiguous meaning and carry greater weight and authority to the language itself (Gibbons, 2003).Such kind of old-fashioned English words are usually a compound composed of an adverb and one preposition or two. For example, hereto, hereinafter, therein, thereas, whereas, whereof. The commonly seen adverbs are here, there and where, while the frequently used prepositions are after, at, by, from, in, of, to, under, upon, and with. These compound words of archaism do cause people difficult to understand the exact meaning.3.1.3 AccuracyA contract drafter should bear in the mind anytime, anywhere that all provisions and terms must be stated with one hundred percent of accuracy, avoiding to arousing any disputes due to unclearness and/or ambiguity in language. Perspicuity of language should be put first priority in drafting a contract. One way to achieve that result is to use accurate words. The drafter should have a perfect command of the subtle diversities between the word and its synonyms and/or near-synonyms. The other way is to repeat the words, such as the nouns or modifiers, avoiding getting tired of repetition and the usage of pronouns and omission.3.1.4 Parallelism of Synonyms and Near-SynonymsThe fourth linguistic feature of Contractual English is the parallelism of synonyms and near-synonyms, by connecting two parts with the conjunctions of “and” and “or”. The usage of parallelism of synonyms and near-synonyms is intent to make the language more precise, more accurate, and more complete, and to reduce the ambiguity.As is often the case, the second part of the parallelism is to reaffirm and complement the first part. If there is any dispute or argument among all parties concerned, the reduplication of synonyms and near-synonyms can be helpful to the understanding of the precise meaning of a certain word and to solve the dispute. Another reason for the conjoining of synonyms and near-synonyms is that they are of a certain rhetorical value. They may provide a feeling of elegance or significance to what we say, as Charles Dickens, in David Copperfield, recognized:In the taking of legal oaths, for example, deponents seem to enjoy themselves mightily when they come to several good words in succession, for the expression of one idea; as, that they utterly detest, abominate, and abjure, and so forthWe are fond of having a large superfluous establishment of words to wait upon us on great occasions; we think it looks important, and sounds well (Peter Tiersma, Legal Language, 1999:64).The following paragraph is excerpted from an American property transfer contract:FOR VALUE RECEIVED, the undersigned does hereby sell, transfer, and set over to _ all his right, title and interest in and to a certain contract dated _, 19_ by and between the undersigned and _, a copy of which is annexed hereto.In this long sentence, it can be easily found that “sell, transfer, and set over” and “right, title and interest” are two groups of synonyms and near-synonyms, while “in and to a certain contract” and “by and between” are two groups of relevant words. Moreover, some of the parallelism of synonyms, near-synonyms and relevant words are fixed structure in contracts. For example: This agreement is made and entered into by and between Party A and Party B (Net 3). The agreement shall be and remain in full force and effect in all respects (Net 3). The company hereby releases and discharges Party A from further performance of any duties, obligations or liabilities under the amended agreement (Net 3). The finding of the arbitrator as to the value of the partnership shall be final and binding upon the partners, their heirs, successors, and assigns (Net 3).As is noted, made and entered into, by and between, in full force and effect, releases and discharges, duties, obligations or liabilities, final and binding are the fixed expressions used in contracts.More synonyms and near-synonyms are suggested: nouns: power and authority, kind and nature, etc; verbs: alter and change, bind and obligate, etc; adjectives: sole and exclusive, final and conclusive, etc; subordinate conjunctions: when and as, etc; prepositions: over and above, from and after, etc (杨一秋, 2003).3.1.5 Modal AuxiliariesOnce the contract is signed by all the relevant parties, to whom the legal force, which is put into enforcement, bears restriction. Therefore, the words must be strictly selected in drafting contracts, especially the modal auxiliaries, which need thorough consideration. Three commonly seen modal auxiliaries are: shall, may and shall not. Each of them carries different meanings, and indicates different forces.Frederick Bowers (1989) classifies the illusionary forces of legislative provisions into:1) Imperative language “shall” implies an obligation to do an act;2) Facultative language “may” confers a right, privilege or power;3) Prohibitive language “shall not” imposes an obligation to abstain from doing an act.According to Bowers, “shall”, “may”, “shall not” are the most common legal performative verbs and act with the illocutionary forces of obligation (“shall”), permission (“may”) and prohibition (“shall not”).1) The word “shall” (old-fashioned and formal) is, according to Longman Dictionary of Contemporary English, used in official documents to show a law, command, obligation and compulsion.“Shall”, used in contract(s), is to convey the meaning that what is to be the obligatory consequence of a legal decision rather than simply as a symbol of the future tense, and can thus be paraphrased as “have/has the obligation to”.One example is cited below to better certify the authors opinion:The L/C shall reach the seller 30 days before the shipment (陈建平 2000).In this sentence, “shall” denotes the compulsive obligation of the buyer, which, therefore, in return, reflects the fact that a contract is a legal document. In legal documents, many verbal groups are of the type: “shall” +verb or “shall” + be + past participle. Typical example would be quoted as follows: Within the validity period of the technology transfer agreement, Party B shall provide the joint venture company with the improvement of the technology and the improved information and technological materials in time, and shall not charge separate fees (莫再树 2003). Payment shall be effected within seven days after receipt of the shipping documents stipulated under Clause 10 of this contract (廖瑛，莫再树 2005).2) Permission: “may” confers a right, privilege or powerIn view of semantics, the word “may” conveys the meaning of permission, benefit, right or privilege and is used to permit an action or to give someone the rights to do an action without any intervention. According to Longman Dictionary of Contemporary English, “may” means to give permission to perform or to allow to performing an act. The following is to exemplify the point:The liquidation committee may engage the services of accountants and registered in China for purpose of rendering advice to the Board (胡庚申等，2004).3) Prohibition: “shall not” imposes an obligation to abstain from doing an act“Shall not” is not to perform an action and is frequently used in contracts. Other forms that carry similar meaning are: may not, neithermay.Within the validity period of the technology transfer agreement, Party B shall provide the joint venture company with the improvement of the technology and the improved information and technological materials in time, and shall not charge separate fees (莫再树 2003).In this example, Party B is put into a position of fulfilling a specific obligation. “Shall not” expresses and indicates compulsion and prohibition.3.1.6 Terminological VocabularyLike other industries, legal English has established a whole glossary of its own standard vocabulary and wide applications, among which legal terms occupy a prominent position. As a branch of legal English, contractual English also contains a large number of words that are not used at all in ordinary speech. The meaning of terminological words in the contracts has been stabilized, clarified, single and precise. This striking feature of contractual English is exclusive to other fields and makes contractual English hard to understand. For example:The Licensor shall disclose and deliver to the Licensee the Licensors know-how as promptly as practicable after the effective date of this Agreement (莫再树, 2003).People may become confused in that the word “know-how” does not make sense to them. In this case, “know-how” indicates exclusively the production, employment, and sale of the specified chartered merchandise, as well as all technological information, design, production criterion and other materials that fail to fall in the range of patent.3.1.7 Avoidance of pronounsAnother lexical feature of Contractual English is the avoidance of pronouns. In peoples daily speech and writing, a participant will be introduced for the first time by clear reference, especially by the name of a person or a specified subject to other participants involved in the conversation or writing, such as Bill Gates, NASA, the Declaration of Independence, etc. . As long as the person or the subject is known and clear to all participants, people prefer to use a pronoun to identify the person and the subject. However, in contracts, pronouns are seldom used. The reason is that precision and unambiguity are prior to anything else. If not, disputes would arouse due to the unclear direction caused by pronouns, sometimes it may even cause great losses to all parties concerned in the contract. For example:The Author shall bear the cost of any necessary fees for textual and illustrative permission nut the Publishers agree to pay such fees on the Authors behalf up to an agreed maximum amount and may deduct the same from any sums that may become due to the Author under this Agreement (夏康明, 2003).In this example, every time the author of the book is mentioned in the contract, “Author” is used to substitute the pronoun “he/she” in order to avoid any possible different interpretation or understanding of the participant in later days if any dispute would be aroused. To that effect, the drafter prefers to use of the noun-“Author” repeatedly rather than the pronoun to clarify the