LEGAL ENGLISH

Language is medium, process and product in the various arenas of the law where legal texts, spoken
or written, are generated in the service of regulating social behaviour. Once norms and proceedings
are recorded, standardised and institutionalised, a special legal language develops, representing a
predictable process and pattern of functional specialisation”. There is a difference between common
law and civil law. Common Law gives judges an active role in developing rules. Common law
systems make extensive use of statutes, judicial cases are regarded as the main source of law which
gives judges an active role in developing rules. Common law systems are found in countries that are
former English colonies or have been influenced by Anglo-Saxon tradition like Canada, Australia,
India and the US. Common law is inductive reasoning. Often called case law, legal minds are more
flexible because Parliament is not needed to enact legislation to quickly adapt to circumstances. It is
called common law because it was “common” to everyone in the Commonwealth….origins from
Roman or canon law. Civil Law is based on fixed codes and statutes and Civil law systems are more
wide-spread (diffuso) than common law systems 150-80 countries respectively. Unlike the common
law, civil law is deductive. Roman law and, more specifically, to the most distinguished
contemporary compilation of Roman law, the sixth century Corpus Juris Civilis of Justinian (the
Justinian Code). National legal systems emerged through the process known as codification. Both
the common law and civil law systems share roots in Roman law, Nevertheless: evolution of the
common law system has been much different from that of the civil law. The general principles of
the common law grow not out of codification, but rather out of the judicial decisions in court cases
by individual judges over a long period of time. The common law system concentrates big power in
the courts and gives primary influence within the system to lawyers. Common law was originally
unwritten and existed only in the memories of its legal practitioners. Early in the last millennium
judges began to record their court decisions. This gave rise to judge-made case law. The written
language of the law after the Norman Conquest was at first English and Latin, but Latin was
predominant. Latin was the language of formal legal written documents, like writs or text of
maxims. By the 14th century, French had taken over Latin as the language of the Year Books and
statutes. Legal French had a big lexical and morphological influence, all laws and reported court
cases in England were recorded in legal French. Legal English started to replace legal French in the
late 15th century. Common law genres were Writs (brevis): orders issued from a court requiring
performance of a specified act, or giving authority to have it done. Maxims of equity: principles of
Equity. Year Books: British earliest law reports. Statutes: most important kind of legislation
(otherwise called Acts of Parliament). Since the 18th century there has been a slow simplification.
In the 19th century the efforts of “Plain Legal English Campaign” started, but despite these efforts
at simplification and clarification, the gap between legal language and everyday language is still
very wide. However, the “plain legal language” movement has been compelling commercial,
banking, and insurance companies to rewrite information about their policies in everyday English
and make contract documents clear and short. Many English-speaking countries have passed laws
requiring the leases, insurance policies, loan agreements, and other documents intended for non-
lawyers be written in “plain English”. When translating legal texts, the translator must develop
some or all of the following skills:
– The ability to understand why legal documents are written the way they are;
– The ability to understand how these documents are constructed, interpreted and used;
– The ability to read and clarify these legal documents for the benefit of lay audience
Translation of legal texts is not simply a matter of linguistic transference alone. It is an attempt to
communicate someone else’s message through another language. It is an attempt to communicate
one world in terms of another. In order to accomplish it successfully and effectively, the translator
must understand two semiotic systems at the same time. When translating legal texts one must
concentrate on many factors.
The most important factors are:
– interpretation or intended use of the translation,
– easification or facilitation of the original text,
– context of situation,
– rhetorical context,
– communicative purpose,
– textual organization,
– generic knowledge (genre analysis), etc
Linguistic difficulties often arise when two legal cultures clash during translation. The root of these
problems lies in their varying legal histories, cultures, and systems. The task of legal translator, like
that of any technical translator, is to transfer one highly technical language (e.g. English legal
language), into another highly specialised language (e.g. Italian legal language). Simultaneously,
translators must acquire some basic knowledge of the legal systems of the source and target
languages and always be sensitive to the fundamental differences of these systems. One of the
principal difficulties in legal translation, regardless of the subject matter, is the question of
conceptual differences between the two languages and the absence of equivalent terminology. The
translator also needs to be given sufficient practice in analysis of sentences used in legal texts,
especially focusing on the use of lexico-grammatical devices which are typically used to make
interpretation and use of legal texts certain as well as flexible. Particular attention must be paid to
the identification and use of complex prepositional phrases and qualificational insertions to make
rules clear, precise and unambiguous and to binomial expressions to make them all inclusive. A lot
of attention can also be paid to cognitive structuring typically associated with legislative sentences.
Legal translators provide the exact transference of meaning from the original language into precise
conventional formulations of the target language, with no regard (except in extraordinary
circumstances) for authorial style, or for authorship at all.
CONTRACT
Introduction
Problems in International Contracts are:
different law systems (e.g. common law vs. civil law);
different discoursal practices (genres, rituals) ;
different cultures and languages come into contact
At an international level, contractual relationships include provisions which “guarantee linguistic
rights to guarantee linguistic rights to vulnerable parties”, i.e. consumers”, i.e. consumers. certain
language requirements might create barriers for traders (for instance when they have to provide
information or draw up a contract in a given language), and eliminate barriers for another group of
persons (for consumers who are entitled to receive information or a contract in the language of their
choice) at the same time. Consumer protection is a typical example where the weaker party to the
contract, namely the consumer, must be protected by additional legal means. The obstacles for
the EU in its attempt to unify the law systems of the 28 Member States: linguistic and cultural
barriers.
Failure due to:
•differences between common and civil law.
•differences within the civil law itself: lack of 100% correspondence of legal terminology.
EU important legal instruments to regulate business and consumer relations,
•Directive on Consumer Rights(CRD) (2011/83/EC);
•Common European Sales Law(CESL);
•Common Frame of Reference(CFR);
•Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees
•Directive 93/13/EEC on unfair terms in consumer contracts.
World main legal instruments ruling contracts are
•the 1980 United Nations Convention on Contracts for the International Sale of Goods(CISG)
(www.uncitral.org)
•the UNIDROIT (www.unidroit.org)
Differences:
First and foremost, the CISG is binding, whereas the UNIDROIT is not; therefore, the former
prevails over the latter, when they are in conflict.
The UNIDROIT principles are more exhaustive than the CISG, so it works as gap filler whenever
the GISG provisions cannot cope with some issues
US main instrument to harmonize the law of sales is the Uniform Commercial Code. Article 1 of
the General Provisions:
•(a) The Uniform Commercial Code must be liberally construed and applied to promote its
underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law
governing commercial transactions; (2) to permit the continued expansion of commercial
practices through custom, usage, and agreement of the parties; and (3) to make uniform the law
among the various jurisdictions.
Definition
A contract is a legally binding agreement between two or more parties. A common aspect is that by
means of a contract, two or more parties reach an agreement, in order to produce legal effects, i.e.
Therefore: a contract in itself constitutes a type of agreement.
Often: contract and agreement are used as synonyms
IN FACT, every contract is an agreement and is based on agreement, but every agreement is NOT
a contract.
Agreement is also used as a more general word, to indicate a decision or arrangement between
people or organizations, relating to business, politics, family or social life, but WITHOUT legal
force.
According to the Common Law, a contract is a legally-enforceable promise or set of promises
made by one party to another; it is a legally binding agreement concerning a bargain which is
essentially commercial in its nature and involves the sale or hire of commodities such as goods,
services or land.
An exception is the commercial contract whereby we mean the written document embodying the
parties’ agreement, and usually called, on the face of the document: Agreement.
As a contract is a legally binding agreement, it is enforceable in a court of law. This means that if
one party does not perform its obligations under the contract, the other party can make a claim to
the civil courts, requesting a remedy (rimedio, riparazione [per illeciti civili], misura
cautelativa).
In English law, a remedy such as rescission is also available to an innocent party (contraente
fedele) even without court action.
A contract is an agreement giving rise to obligations which are enforced or recognised by law. The
factor which distinguishes contractual from other legal obligations is that they are based on the
agreement of the contracting parties.
The first requisite(requisito)of a contract is that the parties should have reached agreement.
Generally speaking, an agreement is made when one party accepts an offer made by the other.
Further requirements are that the agreement must be certain and final; and special problems arise
from conditional agreements.
The rights and duties of the parties under the contract are called the terms of the contract(also,
contractual terms). The terms are said to be implied if they are not agreed by the contracting
parties.
They are said to be express if they are agreed by the parties.
Term can be translated as clausola contrattuale.
HOWEVER, contractual clause is not a synonym of term.
Clause or contractual clause is used to refer to the specific numbered provisions of a written
contract.
An example of express term is the contractual stipulation o stipulazione contrattutale.
Both implied and express terms may be either conditions or warranties:
Conditions are the fundamental terms of the contract; they are the essential terms;
Warranties are the minor terms of the contract; they are the non-essential terms
This distinction is very important in case of breach of contract. If one party breaks the contract, i.e.
he fails to perform some of its obligations under the contract, called breach of contractor non-
performance, different remedies are available to the innocent party, depending on whether the term
broken is a condition or a warranty:
a) If the party in breach has broken a warranty, the innocent party may claim damages;
b) If the party in breach has broken a condition, it is called fundamental breach of contract and
gives the right to the innocent party to rescind the contract, i.e. to treat the contract as terminated.
The parties to the contract, also called the contracting parties, may be
a) Natural persons, or
b) Juristic persons, i.e. entities possessing legal personality: in common law systems, they are
called corporations
Both natural persons and juristic persons are legal persons
Discharge
Discharge of contract (estinzione di contratto) is the termination of the contractual obligation. In
legal language, discharge means release from an obligation (e.g. discharge from a debtor a
liability).
A contract may be discharged in various ways:
-Discharge by performance (fine del contratto a seguito dell’esecuzione)–where the parties perform
the contract, fulfilling their contractual obligations: the contract comes to a ‘natural’ end;
-Discharge by express agreement (Estinzione per mutuo accordo/consenso/accord esplicito)–where
the parties agree to extinguish the remaining obligations;
- Discharge by breach (Estinzione del contratto a seguito dell’inadempimento di una delle due
parti )–where one party does not fulfil its side of the contract. A contract may be discharged by
breach where one party: (a) indicates (by words or actions) that it does not intend to perform its part
of the contract (called anticipatory breach or repudation); or (b) fails to perform its obligations
under the contract (fundamental breach).
- Discharge by frustration of contract (Estinzione del contratto per impossibilità sopravvenuta,
peraltro, non già della prestazione di una delle parti, ma a seguito del venir meno dell’operazione
contrattuale): a contract is frustrated where, after the formation of the contract, some event beyond
the control of the parties makes it: (a) impossible to perform the contract (impossibility of
performance); or (b) illegal to perform the contract (illegality); or (c) prevents the main purpose
from being achieved (failure of main purpose). In these circumstances, each party is released from
its contractual obligations.
In legal context, there are various meanings and different translations:
Adempimento, Esecuzione, Annulamento, Estinzione, Revoca, Scioglimento, Risoluzione, Rigetto,
Esonero, Liberazione da un obbligo (vincolo, peso, onere).
In English law, no particular formalities are generally required to form a contract. Most contracts
are simple contracts.
A simple contract may be oral or in writing, or it may be concluded by conduct, that is performing
an act.
In standard commercial practice, agreements must be stipulated in writing.
Contract may be made in a special written form: a deed.
A deed (atto notarile) is used, for example, when buying real property.
The deed is the form that the transfer of a legal estate in land takes
The term conveyance (atto di cessione di proprietà) indicates both the document and the transfer.
The term conveyancing refers to the set of procedures carried out for a fee by a practicing solicitor
or licensed conveyancer.
To some extent, the conveyancer carries out the same tasks as the Italian notaio, although in the
common law systems there is no professional equivalent for notaio.
The main elements required to form a contract in English Law are:
1. Intention to create legal relations: The parties must intend to form a legally binding
agreement, not an agreement or arrangement without legal force.
In case of dispute over the existence of a contract, the courts must determine the intention of
the parties and use two different presumptions:
•one for domestic agreements (family and personal),
•and one for commercial agreements
A presumption is a legal supposition, important in the law of evidence. For example, in
criminal law the presumption of innocence is fundamental to a defendant’s rights:
Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law. (Article 6(2) ECHR (CEDU).
Most presumptions are rebuttable (confutabili), i.e. they can be rebutted(disproved)by
producing evidence to the contrary; such presumptions are called rebuttable presumptions
It is presumed that in domestic agreements, the parties do not intend to create legal relations
whereas it is presumed that they intend to create legal relations in commercial agreements.

2. Agreement: In the common law courts, an agreement is said to be reached when there is
offer and acceptance. Under English law, a contract is formed at the moment of
acceptance, i.e. when one party (the offeree: destinatario dell’offerta) accepts a valid
offer made by the party (the offeror). The offeror must be willing(ready, with the intention)
to be bound by his oral or written statement. The acceptance must come from the party to
whom the offer is made. The terms of the offer must be accepted, not varied. Terms are said
to be varied when all terms are agreed but one, e.g. a variation in price is suggested. This is
a case of rejection of the original offer and a counter-offer is made, which may be accepted
or rejected.

3. Consideration: Someone conveys a property to someone else, in exchange for an amount of

money, which is the price. Consideration Central notion in Common Law: it is value
paid for a promise and is absolutely needed for a valid contract. It can be described as the
 price of the bargain in English law. A contract is viewed as a bargain. The term bargain
indicates a transaction in which both parties have something to gain. The idea is that in
simple contracts, something must be given in return for the promise: if not, the English
courts will not enforce the promise, and there is no contract. The name we give to what is
given in return for the promise is consideration.
Other elements: offer and acceptance
There are a series of contracts (Codice Civile):
Bilateral, Unilateral and Multilateral
Onerous legal deed and free of charge

There are a series of contracts in the Common Law:

Contracts of Record: constitute juridical obligations legally binding the parties, by means of
sentences of the law courts;
Contracts under Seal: written documents and rigorous procedures are requested;
Simple contracts: subject to the general discipline
EXECU Transaction contracts: characterized by immediate execution
TION-
BASED Relation contracts: may subsist over a long period of time, as in the case of employer-employee
CONTR relationships
ACTS

There are a series of commercial or international contracts:

The multilingualism of international contracts may cause some problems, among them the
presence of different discourses, legal systems, languages and cultures that come into
contact. The EU attempts to simplify and unify the law systems by using different legal
instruments, the directives: the binding CISG (Contracts for the International Sale of Goods),
the unbinding UNIDROIT, CRD, CESL, CFR. The US main instrument is the UCC (Uniform
Commercial Code).

TIME- Contratti a esecuzione instantanea(the contract validity concerns a limited period of time);
BASED Contratti di durata(the contract continues in existence over a period of time)
CONTR
ACTS Contratti a esecuzione immediata(contracts with immediate execution of time)
(Cod.
Contratti a esecuzione differita(the seller and the buyer respectively commit themselves to convey
Civ.)
sold goods and to pay the required amount, within a given period of time)

A commercial contract is formed by: the commencement (including the beginning and the
preamble) , the recitals, the operative part, the closing formula, the schedules and the
signatures.

Commencement is the formal opening of the contract. It includes the beginning and the preamble.
It may state the nature of the agreement (e.g. Agency, Franchise, etc.) and always gives the date
on which the agreement is entered into, and the identity of the parties.
Beginning is the Title of the contract
•at the top center of the first pageor
•on a cover page, which includes party names and the date of the agreement.

In general:
-Conciseness
-No party names in the title
Preamble or introductory clause states the name of the agreement, the date, the parties, their
address and defined terms. Expressions to establish the date:
“dated as of” (rather than “made” or “entered into”).
The date in the preamble is the date of the contract. This may sometimes diverge from the “date of
effectiveness”
“between” two parties
“among” more than two parties
The parties should be identified. If a natural person is an appearer, this must be identified by his or
her full name.
The commencement may be followed by recitals/premesse (or preambles); these paragraphs
provide background information against which the agreement should be read. The recitals may
state the purposes for which an agreement is made.
Each recital is traditionally introduced by the adverb Whereas
Paragraphs are introduced by
-WHEREAS
-NOW, THEREFORE clause. This contains a recital of consideration
Definitions: Any defined terms in the preamble may be referred to in a section of the agreement
that contains all defined terms or refers to their location within the body of the agreement.
The defined term is generally placed in parentheses.
The operative part: is the Body of the Agreement.
It contains:
-Representations and warranties and other provisions that impose or establish obligations for which
the parties become responsible upon the occurrence of certain events, e.g. default, assumption,and
indemnity provisions.
The operative part of the agreement is the main body of the document. It may be introduced by a
conventional phrase, such as:
NOW IT IS HEREBY AGREED as follows: -
It contains provisions agreed by the parties, creating rights and duties for each of them; the
provisions are organised in a sequence of clauses, divided according to subject matter.
Each clause covers a single aspect of the agreement, and may have a descriptive heading, e.g.
Clause 5. Orders, terms of sale and payment.
The contract may contain an index page at the beginning, listing the themes of each clause and
relative page numbers in the document, for ease of reference:
Definitions –Conditions precedent –Other operative provisions –The boiler-plate
The first operative clause is often a definitions clause, defining terms which are fundamental to the
agreement, and providing rules for interpreting it. The definitions may be absolute, or the
definitions clause may specify:
‘In this agreement, unless the context otherwise requires…”
This clause indicates that the particular term may sometimes have a different meaning in the
contract, if the context clearly makes that necessary
Conditions precedent
A contract may contain a clause stipulating a condition or conditions precedent. The contract, or
specified parts of it, will only become operative if the condition is fulfilled.
e.g. the contract may only come into force provided that certain financial requirements are met.
Other operative provisions
We come to the main body of the contract, stipulating the parties’ rights and duties. Clauses often
include: representations (pre-contractual statements, for example, concerning the quality of the
products) and warranties, possibly with a provision specifying and limiting damages, in case of
breach
The boiler-plate (espressioni standard)
This name is given to the final clauses of the contract, typically covering matters such as governing
law and jurisdiction, payment of legal fees in connection with the contract, assignment of rights
(the transfer of rights under the contract to another) and so on.
The remainder of the agreement contains:
-The concluding clause or paragraph,
-Places for signature of the parties (signature blocks)
-acknowledgments
Closing formula
The final operative clause is followed by a conventional formula, such as the following:
AS WITNESS the hands of the duly authorised representatives of the parties to the Agreement the
day and year first before written
The Schedules, also called Annexes, Appendices, or Exhibits, set out matters of detail,
fundamental to the contract, e.g. details of property being conveyed, of products, of intellectual
property rights, and so on.
Traditional English practice is to put the signatures at the end of the contract, after the Schedules.
JUDGMENT

A Judgment is formed by:

 Introduction (Esordio): characterised by impersonality and intertextuality
 Report (Racconto) & Motivation: in which past events are told.
 Evaluation (Valutazione) & Judgment (Giudizio): where the syllogism closes with a
performative act.
SENTENCE
The sentence is precisely defined as the decision that exhausts the procedural relationship, or at
least one phase of it, and is to be understood as an act that concludes the judgment of responsibility
of a person who has committed a criminal act (or has not committed it). The sentences are the final
acts of the trial. The sentence takes the form of a performative macro-enunciated statement, whose
outcome is a legal fact.
A sentence is realised by 4 pragmatic functions:
 Narrative: about the facts
 Descriptive: about the norms
 Argumentative: the judge explains his decisions
 Performative:
A sentence is formed by:
Narration of the fact
Motivation
Decision

The first two elements are compulsory.