MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW GRADUATION THESIS B. DEGREE IN ENGLISH Major: Legal English LEGALESE OR PLAIN LANGUAGE?: A CORPUS-BASED STUDY ON THE LANGUAGE OF ADHESION CONTRACTS Supervisor: NGUYEN THAI SON, MA Student: TRAN HOANG MY NGOC Student ID: 1952202010039 Class: 112-LE44(A) Ho Chi Minh City, 2023 ACKNOWLEDGEMENTS Looking back on the long journey of my graduation thesis, I am incredibly fortunate to be among the students who had the opportunity to undertake this thesis. The journey toward the result of this thesis is an invaluable pursuit, despite the numerous difficulties and encounters along the way. Instead, this is the journey to self-development and acquiring a wealth of academic knowledge.
However, I recognize that achieving the best result would not have been possible without the unwavering support of my supervisor, friends, and family, whose continuous encouragement propelled me toward constant improvement. Therefore, I want to express my sincere gratitude to everyone who has supported, guided, and assisted me throughout my academic journey and the completion of this graduation thesis. First and foremost, I would like to extend heartfelt gratitude to my supervisor, Mr. Nguyen Thai Son, for his wholehearted guidance throughout the process of my graduation thesis.
I can confidently assert that the aphorism "Không thầy đố mày làm nên" (Without your teacher, dare you to succeed) is accurate. I could not have fully completed this graduation thesis without my supervisor's guidance and encouragement. I am grateful for his belief in my capabilities. His expertise, profound knowledge, and unwavering encouragement were instrumental in my journey toward success.
With his dedicated support and invaluable lessons, he guided me in tackling research problems, constructing a comprehensive and effective research methodology, and ultimately enabling me to produce a thesis of remarkable quality, of which I am immensely proud. While words themselves may not adequately express the extent of my gratitude towards my supervisor, I would like to sincerely convey my profound appreciation for his guidance throughout my graduation thesis. Secondly, I am sincerely grateful to my family for their unwavering mental support throughout my journey toward completing my graduation thesis. Their emotional and moral encouragement played a pivotal role in bolstering my strength and resilience, enabling me to overcome moments of anxiety and self-doubt.
Their belief in me and my abilities was a constant source of motivation, instilling the i confidence to strive for excellence. Their presence in my life has been a constant source of comfort and reassurance, and I genuinely appreciate the unwavering support they have extended to me. Moreover, I am also thankful to my friends, whose unwavering support, resources, and facilities were indispensable for completing this graduation thesis. Among them, I would like to express my special appreciation to Quang Huy, an automation engineer who played a vital role in assisting me with creating a coding system that greatly aided in data processing.
The access to state-of-the-art materials, equipment, and facilities provided by my friends has significantly facilitated the research process and enabled me to accomplish my research goals. Finally, I want to express my appreciation to other cherished individuals, whom I cannot entirely mention, who contributed to my academic and personal growth. Their guidance, feedback, and support have been invaluable in shaping my journey as a student at Ho Chi Minh University of Law. ii LIST OF ABBREVIATIONS EU European Union LPC Law on Protection of Consumers’ Rights SEC The Securities and Exchange Commission UK United Kingdom VCA The Vietnam Competition Authority iii LIST OF TABLES AND PICTURES Table 1 Synthesis of selected features Table 2 Description of the corpus design Table 3 Average number of words per dot Table 4 The prevalence of relative clauses and conjunctions in contract corpus Table 5 Frequency of archaic terms in contract corpus Picture 1 Icon of AntConc 4.0 Picture 2 Graphical user interface of AntConc 4.0 Picture 3 CountDot Program Picture 4 Example of insurance policy (using lists and numbering) Picture 5 Example of insurance policy (visual cues) iv TABLE OF CONTENTS ACKNOWLEDGEMENTS.
i LIST OF ABBREVIATIONS. iii LIST OF TABLES. iv CHAPTER 1: INTRODUCTION .1 Background to the study .3 Significance of the study .4 Scope of the study.6 Structure of the research. 8 CHAPTER 2: LITERATURE REVIEW .1 Legalese in general .1 Legalese in contract .1 Previous Findings and Recommendations .2 Synthesis of selected features.
17 CHAPTER 3: DATA AND METHODOLOGY. RESULTS AND ANALYSIS .1 Design and layout. 29 CHAPTER 5: CONCLUSION AND SUGGESTIONS. 53 vi ABSTRACT The use of legalese has led to the emergence of the Plain English movement, which aims to simplify the language used in the legal field, particularly in contracts.
Despite extensive discussions on guidelines for more effective drafting, adhesion contracts still pose specific challenges and face resistance to reform efforts. This is a study of legalese and plain English within collected adhesion contracts, including banking, insurance, and employment sector. With an approach drawing on corpus- based research, the study aims to examine to what extent the drafters of sellected adhesion contracts applied the plain English rule, primarily focusing on the lexical and structural patterns, including design and layout, grammatical structures, and archaic words. The findings indicate that collected adhesion contracts have shifted towards using plain English, employing modern design strategies, eliminating outdated words, and adopting a concise writing style.
However, compared to the banking and insurance sectors, employment still tends to use more archaic terms, potentially influenced by legal traditions. This difference can be explained by prioritizing effective customer communication in the banking and insurance industries. They recognize the significance of conveying complex financial concepts and terms in a manner that is easily comprehensible to the general public. The results of this study support previous linguistic studies, which have recognized and recommended substituting problematic elements of legal text with plain English alternatives (Diamond et al.
However, further research should be undertaken concerning the other linguistic patterns and usage in various types of contracts to broaden the research scope. Furthermore, incorporating qualitative research methods such as interviews or focus groups with contract users and legal professionals could provide valuable insights into their perceptions and experiences with different linguistic aspects of contracts. Keywords: Plain English, Legalese, Legal language, Adhesion contract vii CHAPTER 1: INTRODUCTION 1.1 Background to the study Gibbons (2003) asserts that every area of expertise possess a distinct set of language characteristics. Legalese or "the customary language used by lawyers in common law jurisdictions where English is the official language" (Mellinkoff, 2004), is notoriously employed by legal professionals and individuals involved in legal proceedings, including jury members, lay judges, and administrators.
Despite being primarily derived from ordinary language, legal language possesses distinct features that make it suitable for legal purposes (Tiersma, 1999; Mellinkoff, 2004; Tiersma & Solan, 2012). In other words, although legal language shares similarities in grammar and vocabulary with everyday language, it differs in syntax, terminology, and writing style. These are due to the historical development of the law and its tradition-bound nature. Legalese has evolved to incorporate established conventions and norms, contributing to its unique character.
However, because legal professionals are trained to understand and navigate this specialized language (often archaic), legalese can create barriers for the lay public (Tiersma & Solan, 2012). Over the centuries, lawyers have faced criticism regarding their technical and conservative writing style, which has even become a source of amusement and derision. In 1596, an "incident" highlighted efforts to address an excessively verbose document submitted to an English chancellor's court. Remarkably, the chancellor ordered a hole cut through the center of the lengthy 120-page text.
Furthermore, he decreed that the document's author should have their head inserted through the hole. Subsequently, this unfortunate drafter was led in a procession throughout Westminster Hall, serving as a public spectacle for those in attendance at the court. This incident is pointed out by Kimble (2023) as a testament to the long-standing concern and disapproval surrounding the intricacies of legal writing and the need for clarity and conciseness within the field. In addition, Judge Edward (1992) also expresses strong criticism, using terms like "appalling" and "awful," regarding the overuse of legalese in writing.
It can be said that dissatisfaction with legal language 1 is not limited to outsiders, as lawyers themselves have expressed a strong dislike for it (Martínez et al. When considering the language of contracts, the potential legal consequences of this concern become more evident, as it can lead to disputes or detrimentally impact the parties' interests. Consumers cannot understand the contract's terms, and citizens often struggle to comprehend the complexities of the law (Black, 1981; Hoffman, 2009). The distinctive characteristics of the contract are highly exceptional.
An eminent English judge, Lord Mansfield, once remarked that "the majority of conflicts in the world stem from linguistic expressions." Numerous legal conflicts arise from ambiguous contract language, even when attorneys have been careful in their drafting. A notable case exemplifying this issue is O'Connor v. Oakhurst Dairy in 2017. In this case, delivery drivers sued for unpaid overtime wages.
The dispute centered around whether the drivers were covered by an exemption for "packing for shipment or distribution" under Maine's wage and overtime law. The appellate court found an ambiguity in the statute's language and interpreted it to refer to a single activity of "packing." Since the drivers did not engage in "packing," they were not covered by the exemption. While some contracts are negotiated between parties with relatively equal bargaining power, others are designed to favor one party over the other. Adhesion contracts are widely used as a principal legal instrument to fulfill their intended purpose, and this format has become an integral component of commercial transactions and relationships (Patterson, 2010).
An adhesion contract is a type of agreement that presents the terms and conditions to the other party on a "take it or leave it" basis. This type of contract has become ubiquitous in daily activities, including mobile phones, insurance, banking services, gym memberships, and other social activities. Several rationales can explain the rise in the use of these contracts. Using adhesion contracts can result in lower contracting expenses, including the expenses of negotiating and drafting the contract (Ben-Shahar, 2007).
However, it possesses both benefits and drawbacks. Due to the absence of mutual negotiation, adhesion contracts need more meaningful consent from the adhering parties regarding 2 the contractual language. It is customary for corporations, with the assistance of their legal counsel, to exert substantial diligence in formulating contracts that safeguard their interests and ensure the efficacious protection of their business concerns, frequently emphasizing the prevention of encroachment by external parties. However, the key issue lies in the linguistic attributes intrinsic to adhesion contracts, which commonly employ specialized legal terminology and technical jargon.
One example is Meyer v. Uber Technologies, Inc. The plaintiff, an Uber car user, alleged that Uber improperly increased prices by using self-employed drivers, violating antitrust laws. The district court denied motions by Uber and its former CEO, Travis Kalanick, to compel arbitration.
However, an appeals court ruled that Uber users must go through arbitration to pursue such claims, reversing the district court's decision. This case highlights the issue of forced arbitration clauses in lengthy adhesion contracts, which can limit consumer protections and access to justice. The enforceability of a click-wrap agreement can be considered a type of adhesion contract issue, as it involves the terms of a contract being imposed unilaterally by one party (in this case, the website owner) on the other party (in this case, the user of the website) without the ability to negotiate or modify the terms. The primary issue at hand is the need for meaningful consent from customers.
Most customers do not read the standard terms before providing their consent by signing or clicking 'I agree.' Even for the few consumers who read them, there is doubt whether they can fully comprehend the terms due to their linguistic complexity.