Types of contract clauses

The following types of clause are typical in contracts:

An assignment clause permits, prohibits, or restricts a complete transfer of contractual rights by one or more of the contracting parties to a non-party.

A confidentiality clause prohibits or restricts disclosure of specified information (usually related to intellectual property or trade secrets) to non-parties.

A consideration clause sets out what one party undertakes to do or not do in return for the other party’s entry into agreement. It also typically provides the price of the contract or terms of payment.

An entire-agreement clause provides that the contract represents the parties’ entire understanding on the subject matter of the contract. It expressly or impliedly incorporates and consolidates into the contract any oral or prior agreements the parties had reached on the subject matter.

A force majeure clause shields parties from liability for failures to perform contractual obligations when unavoidable events beyond the responsible party’s control have caused the failures. Such unavoidable events include natural disasters and wars, and are sometimes called ‘Acts of God.’

An indemnification or indemnity clause imposes on a party financial responsibility for specified types of claims, damages, or losses. The responsible party undertakes to ‘hold harmless’, ‘indemnify’, or reimburse the other party in the event of any such claims, damages, or losses.

A liquidated-damages clause imposes a fixed financial penalty that a party who breaches the contract or any specified clause must pay to the innocent or injured party.

A severability clause provides that even if some provisions of the contract are declared invalid, unenforceable, or void, the rest of the contract remains in force. Severability clauses are common in agreements with arbitration clauses.

A termination clause sets forth how, when, by whom, and why the contract may be terminated.

Subtle Distinctions: Abbreviation versus acronym

Image credit: Plrinternetmarketing.com

Image credit: Plrinternetmarketing.com

Lawyers should possess semantic exactitude- we should appreciate subtle distinctions between words or expressions that look or sound alike.

In this issue, we explain the difference between an abbreviation and an acronym.

An abbreviation is “the shortened form of a written word or phrase used in place of the whole.” (Merriam-Webster).

AMCON, AU, UK, and USA are abbreviations for Asset Management Corporation of Nigeria, African Union, United Kingdom, and United States of America, respectively.

An acronym is an abbreviation pronounceable as a word. An acronym is typically formed from the first letters of each (main) word in a phrase. All acronyms are abbreviations, but not all abbreviations are acronyms. Some acronyms evolve into words, no longer merely pronounceable as words.

AMCON is an acronym because you can say it as a word (without mentioning the component letters). AU, UK, and USA are not acronyms—you have to say each letter. Merriam-Webster erroneously lists FBI as an acronym; it’s not.

CEO is abbreviation for Chief Executive Officer. CEO, the abbreviation for Chief Executive Officer, is not an acronym—it’s not pronounceable as a word: you have to say each letter.

Sonar is the acronym for sound navigation and ranging.

Because they are pronounceable as words and formed from the first letters of the constitutive words, AIDS and NATO are acronyms (for Acquired Immune Deficiency Syndrome and North Atlantic Treaty Organisation).

And because they are not pronounceable as words (you have to say each individual letter), AU, NYPD, and UN are not acronyms—they are abbreviations for African Union, New York Police Department, and United Nations.

Laser is the acronym for Light Amplification by Stimulated Emission of Radiation, but the words by and of have not contributed their initial letters to the acronym.

Acronyms do not take full stops. Write AIDS not A.I.D.S. Strictly, abbreviations that are not acronyms need full stops, but you can dispense with full stops when writing well-known abbreviations with all capitals. So write AU instead of A.U., though both are correct. Prefer NWLR to N.W.L.R. for Nigerian Weekly Law Reports. USA is better than U.S.A for United States of America.

To pluralize an abbreviation or acronym, do not add an apostrophe before the s.

Wrong: 15 NGO’s were invited to bid for the rural health fund.
Correct: 15 NGOs were invited to bid for the rural health fund

In American English Dr., Mr., and Mrs. take full stops, but not in British English. Our dialect of English in Nigeria is British, so write Dr, Mr, and Mrs, without full stops. The v in case titles should not take a full stop: Stabilini Visinoni v Federal Board of Inland Revenue. And it’s v, not vs.

What happened in Mylward v Welden?

The plaintiff filed pleadings running into 120 pages. The learned judge was not happy. The learned judge struggled through the volumes of jargon. The judge then assessed that all the pertinent material could have been contained in 16 pages. He asked who wrote this mumbo jumbo. When told that the culprit was the plaintiff’s son Richard Mylward, the learned judge imposed severe sanctions on Richard for his annoying verbosity, which, in the judge’s view, amounted to an abuse of court process. The sanctions included perforating the offending mass of documents and inserting poor Richard’s head through the hole made in the paperwork, and then leading him about the court premises during court sittings for all to ridicule, with the large pack of documents hanging around his shoulders.

“Gives a whole new meaning to the expression ‘legal loophole’, doesn’t it?” quipped the editor of Clarity Newsletter.

Lawyers’ language goes on trial—less literally than in Mylward’s case.

When I was a kid growing up in Onitsha, occasionally I would go to the courthouse to observe proceedings. One day I watched the following unfold.

The witness swore to tell the truth, the whole truth, and nothing but the truth, so help him, God. The clerk asked him whether he understood English. The witness said yes. The lawyer for his side did the direct examination. Then the opposite lawyer gathered her papers and came over to start cross-examination:

Lawyer: Is the defendant’s land contiguous to your father’s farm?

Witness: (No response, looking blank, glancing pitiably at the judge)

Lawyer: Answer the question! Is the defendant’s land contiguous to your father’s farm?

Witness: Sorry, I don’t understand.

Lawyer (yelling): You don’t understand? But you told this honourable court that you understood English.

Judge (to counsel): Why not rephrase your question in plain English?

Lawyer: My lady, he said he understands English. I’m speaking English to him now and he’s moping like a cow!
(Turning belligerently back to the witness):
Is your father’s farm contiguous to the defendant’s land?
(Back to the judge):
My lady, I’ve rephrased the question. Let him answer it. He must answer the question.

Witness: I’m sorry, my lady. I do not understand the question.

Pompous campus lexicon

When I went to university, the community encouraged pompous language with big words. Examples:-

Plain English: Birds of like feather flock together.
Lawyer-friendly university translation: Birds of identical plumage congregate in the same equilibrium.

Plain English: A rolling stone gathers no moss.
Lawyer-friendly university translation: A travelling geological formation acquires little vegetative growth.

Plain English: Charity begins at home.
Lawyer-friendly university translation: Eleemosynary contributions commence with one’s domicile.

Plain English: Turn off lights before close of work.
Lawyer-friendly university translation: Illumination is required to be extinguished before these premises are closed to business.

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