Category Archives: LEGAL ENGLISH

E,glish vocabulary for contracts

English Vocabulary for Contracts Drafting

English Vocabulary for Contracts Drafting

English Vocabulary for Contracts Drafting
Drafting Contracts in English Requires Knowledge of Contracts Vocabulary.

English Vocabulary for Contracts Drafting is specialized and practitioners who are not native English speakers (and even those who are) often will have to spend a lot of time memorizing new expressions, words and terms. That is to say that Contract Law is a universe onto itself and it has its own vocabulary and linguistic pedigree. For those who are English language learners, learning the language of Contracts is an additional challenge to be added to learning the English language itself. Oye! Well, never fret. Today, I am going to give you a series of words and terms that are unique to the practice of Contracts and Business Law. In some cases I have tried to add a comprehensive explanation based on what I remember from law school.

 

Without further ado, a list of English Vocabulary for Contracts Drafting:

Acceptance – An acceptance is when the offeree learns of a commitment/promise/offer and agrees to the terms thus forming a binding contract with the offeror. For UCC contracts, acceptance is the same for bilateral and unilateral contracts. Either promise or performance is good acceptance under the UCC.  In the case of acceptance by performance, the offeree must give notice to the offeror that performance is in the process.

For bilateral offers, the acceptance can be express or by conduct. That is, the offeree makes a commitment that is definite in language or conduct such that a “reasonable person” would interpret a contractual relationship had been formed between the two parties. Circumstances matter. Even if there is an expression of acceptance, the circumstances can alter the way the situation is interpreted by the Court. Acceptance must be “speedy” and “legally identical” to the way the offer came. So if the offer was made by email, you have to accept by email and this is probably “speedy” enough. You cannot accept an offer orally if that offer was made in writing – as a general rule.

For unilateral offers (promise for performance), the offeree must perform the action that was offered by the offeror in order to accept the offer.  The offeree must give the offeror notice if the offer requires notice, (or if the offeror would have no other way of knowing the performance had been completed) and this becomes a part of the acceptance.

Silence and use of the goods could also be viewed as acceptance. But only the offeree’s silence can be treated as acceptance (if the offeree suggests that his or her silence means acceptance.)

In some cases, acceptance sticks even if the offeror does not receive it. In other words, an acceptance is effective when dispatched, in effect. This is called the mailbox rule.  The mailbox rule only applies to bilateral offers, not unilateral offers. There are however exceptions to the mailbox rule (when the offer says you cannot use dispatch as the test; when you have an option contract; when you have an offeree who keeps changing his or her mind and then sends an rejection letter to change his or her mind; if the offeree rejects first then accepts, then whichever is received first by the offeror will prevail.)

Ambiguity – This is a term in the contract that could have more than one meaning. This could cause the contract to be unenforceable if the ambiguity pertains to a “material term” in the contract. This is an unenforceable contract or provision.

Assignment – Assignment occurs when an original party to all rights and duties of a contract transfers the rights, duties and obligations under the contract to a third party. The person who assigns a right in a contract is called an assignor and the person who receives the right is the assignee. Most but not all contract rights can be assigned. For example, if assignment is prohibited in the terms of the contract it cannot be assigned (but this is tricky because you can still assign and the assignee has a bonafide contract with the other party but this creates a breach issue that entitles the other party to damages potentially). If the right is for personal services the rights cannot be assigned as a general rule if the assignment changes the nature of the performance.

Battle of the forms rules – New and different terms are part of the contract unless the original offer prohibited new terms; or the new terms “materially” change and alter the contract.

Bilateral Contract – A contract is formed with mutual promises – a promise for a promise – the performances are “executory” that means they are not yet executed.

Black Letter Law of Contracts – This term refers to the well-established Law of Contracts that are widely accepted and not subject to dispute – the fundamental principles upon which Contracts law is based and understood by most people (this term is not limited to Contracts, btw).

Breach – Breach occurs when one or both parties fail to perform their duties or obligations under the Contract. The breach could occur because of action of the party who is suing for breach. Breach can be “material”, “minor”, “fundamental” or anticipatory. Usually, breach results in damages to the aggrieved party but on occasion, a material or fundamental breach could be subject to specific performance.

Capacity – Capacity refers to the mental ability of the party to enter into the contract. Anyone under the age of 18 is presumptively not of sufficient mental abilities to enter into most contracts; however they are considered to have capacity for “necessaries.” And a contract with a minor is not necessarily void. It is only voidable if the minor derived no benefit from the contract. Other parties lack capacity to enter into contracts. A person who has been adjudicated “mentally incompetent” cannot enter into an enforceable contract. This type of contract is more than voidable. It is void, ab initio. Other types of incapacity involve drugs, alcohol and other material that could render a person incapable of understanding the commitment he or she is making (if the other party knows or should have known about the incapacity.) This is a voidable obligation. The contract can later be “affirmed” if the incapacitated party gains capacity.

CISG – United Nations Convention for the International Sale of Goods

Collateral Debts – There is an existing obligation to pay the debt and the obligation is not that of the person who promises to pay the debt, and this third party gains no benefit from paying the debt. Collateral debts have to be in writing to be enforceable according to the Statute of Frauds.

Commitment – in the context of a contract, a commitment is an agreement to enter into a contract.

Common Law Contracts – The term common law contracts generally refers to those contracts that do not involve the sale of movable goods, vis a vis UCC contracts (and on the international level CISG contracts) which are limited to the sale of goods.

Conditions of a contract – Each contract has general conditions and special conditions. These are just the terms and conditions that set the rights and duties of the parties in a contract. Boilerplate provisions outline the general conditions and the special conditions are usually the result of negotiation between the parties.

Conforming Goods – Conforming goods are goods that meet the specifications contracted for in the contract vis a vis non-conforming goods which do not meet the specifications of the contract.

Consideration – Every contract requires consideration. Gifts, moral convictions and prior acts are not contracts because they do not have a bargained for exchange. The consideration is the part of the transaction that makes the contract enforceable. The promises must both have consideration for a contract to be enforceable. Both the offeror and the offeree makes promises in a contract. For there to be consideration, the promise must have induced performance from the promisee. Was there detriment? Was there a bargained for exchange?  Is the promise real? Or illusory?

Counter Offer – This is a rejection of the original offer and the proferring of new terms and conditions. Under Common Law Contracts law, the words of acceptance must be the mirror image of the offer. The offeree cannot impose new terms and rules at his or her whim. The UCC is not so strict. To have a counteroffer under the Code, it is necessary that the seller ships nonconforming goods as an “accomodations.” In other situations, if the buyer accepts under conditional language and conditions his or her acceptance on new terms, then this is a counteroffer and the original offeror must accept these new conditions in order for there to be a contract. Under the UCC the goods can be conforming or nonconforming. If the goods are noncoforming, this creates a breach but it is an acceptance and thus a contract is formed. The offeror can obtain remedies for the non-conforming goods (but not if the offeree tells the offeror that the goods are an “accommodation” or “counteroffer.”)

Defenses to a contract – The defenses of a contract include incapacity, Statute of Frauds, Operation of Law, illegality, impossibility, duress (personal and economic), impracticability, unconscionability, force majeure, ambiguity

Delegation of Duties – This implies transferring obligations and duties in a contract to a third party but not necessarily the entire contract as in the case of an assignment of rights.

Firm offer – Merchants can make a firm offer. That means that the person who makes this offer is someone who is in business. These types of offers have to be in writing. Under the UCC (American Law) this is not valid if it is not in writing. With these offer, the merchant promises to keep the offer open. These offers are not revocable for a reasonable time. So whereas most other offers can be revoked at will, firm offers must be kept open by the merchant for at least three months. If the offeree paid consideration to the merchant, then the merchant has to keep the firm offer open for longer than three months under the UCC.

Forbearance – Forbearance to abstain from doing something you would normally not be required from abstaining from. This is good consideration in a contract.

Formation – This concept applies to all the preliminary and necessary steps that precede and include the “commitment” to enter into a contract.

Fraud in the execution – This occurs when a party is deceived into entering into a contract. They did not even know this was a contractual situation. (Another name for fraud in the execution is fraud in the factum.)

Fraud in the inducement – Fraud in the inducement occurs when one party is misled through coercion or deceit to enter into a contract he or she otherwise would not have entered into.

Good – According to the UCC, § 2-105. Definitions: Transferability; “Goods”; “Future” Goods; “Lot”; “Commercial Unit” see, http://www.law.cornell.edu/ucc/2/2-105#Goods_2-105

(1) “Goods” means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action. “Goods” also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2-107).

(2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are “future” goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.

(3) There may be a sale of a part interest in existing identified goods.

(4) An undivided share in an identified bulk of fungible goods is sufficiently identified to be sold although the quantity of the bulk is not determined. Any agreed proportion of such a bulk or any quantity thereof agreed upon by number, weight or other measure may to the extent of the seller’s interest in the bulk be sold to the buyer who then becomes an owner in common.

(5) “Lot” means a parcel or a single article which is the subject matter of a separate sale or delivery, whether or not it is sufficient to perform the contract.

(6) “Commercial unit” means such a unit of goods as by commercial usage is a single whole for purposes of  sale and division of which materially impairs its character or value on the market or in use. A commercial unit may be a single article (as a machine) or a set of articles (as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a single whole.

Lapse – This occurs if a party takes too long to accept an offer. No contract is formed in this case. The deal is considered to be off.

Mail Box Rule – The mail box rule refers to how acceptances are made on the date the acceptance is dropped into the mail by the offeree. Rejections are not subject to the mailbox rule. Those are effective when received. Acceptances are effective when they are dropped or post-marked into the mailbox.

Merchant – Pursuant to Article 2 Sec. 104 of the UCC a merchant is defined as follows: “Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

Mirror image rule – in common law contracts, the acceptance must mirror the offer or it is considered a counteroffer. The rule is different under the UCC and under the CISG in some occasion

Mutual Mistake – This occurs where both parties to a contract made a fundamental mistake as to the subject matter of the contract where the subject matter does not exist.

Offer – Whether a statement is considered an offer is a “reasonable person” test – an objective test. An offer must contain definite terms which are “material” to the subject matter of the contract. Would a reasonable person believe that the speaker intended to form a contract with the listener or offeree?  Circumstances matter. Words are not enough for a valid offer to have been made. Was this serious or was the speaker joking, for example? Horsing around does not create a valid offer if the reasonable person should have known that the speaker was horsing around. So it is language and it is circumstances that will determine if there has been an offer made. (Advertising is not an offer it is an invitation to enter into a contract but it is not an offer or commitment – as a general rule.)

Offeree – In a contract this person must be identifiable and definite and it is someone who has actual knowledge that an offer has been made. THEY MUST KNOW THE OFFER WAS MADE OTHERWISE THERE IS NO CONTRACT. This is the person who receives the offer from the offeror.

Option Contract – An offeree creates this contract by paying consideration to the offeror to keep an offer open for a specific time. The offeror cannot revoke this at will, only within a reasonable time.

Promissory Estoppel – The concept here is that if you make some promises you are estopped from revoking them freely. Promissory estoppel is considered to be a “consideration substitute.” So if the offeree relies on your promise and takes action based on this promise to their detriment, the promise is treated as if consideration was given for that promise.

Rejection – The offeree is the only party who can reject an offer. Rejection can be express or by conduct. To reject an offer means that the  offeree does not make a commitment to enter into a contractual relationship with the offeror.

Revocation – The offeror revokes a contract. This can occur expressly or by conduct. Revocation is not always at will. For example, in the case of merchants whwo make “firm offers” these are not revocable at will. For unilateral contracts which involve a promise for a performance, revocation is not at will when there is partial performance.

Statute of Frauds – This is a defense to the enforcement of a contract. Some kinds of contracts are protected by SoF defenses including contracts for the sale of land, real estate contracts, marital agreements, and contracts for paying the “collateral debts” of a third party are protected if there is o written agreement. In this case, collateral means there is a debt in existence. Third party had no obligation to pay the debt in the first place but he or she promises to pay the debt. This has to be in writing.

Subject Matter of the Contract – The purpose/main “material” material of the contract. For example for the sale of goods the subject matter if the quantity and the price. In an employment contract the subject matter is the duration or term of the employment.

Termination – To end a contractual agreement; revoke an offer; reject an offer (express or conduct); or by operation of law

Third Party Beneficiaries – These parties appear in the contract when it is formed. They are technically a non-party in that they have no duties and obligations but they receive the benefit of the contract and this is evident at the time of formation of the contract. Beneficiaries are intended or incidental. Intended third party beneficiaries are identified in the promise made in the contract and the benefit of the performance goes to this beneficiary. The promisee and the beneficiary must be related in order for the third party to be considered an intended beneficiary. Only intended beneficiaries have rights under the contract! Donee beneficiaries (gift beneficiaries) v. creditor beneficiary (the promise has an obligation to the third party beneficiary)

UCC – The UCC stands for Uniform Commercial Code.

Unconscionability – A term in a contract that is unfair on its face at the time of formation of the contract.

UNIDROIT – INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW. “Its purpose is to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States and to formulate uniform law instruments, principles and rules to achieve those objectives.” http://www.unidroit.org/dynasite.cfm?dsmid=103284

Unilateral Contract – a unilateral contract is formed with a promise for a “fully executed performance.” The other party has to complete the performance in order for the contract to come into force. This cannot be freely revoked by the offeror. Partial performance matters. So that even if you do not have full performance as offeror you have to give the offeree a reasonable time to perform.

Unilateral Mistake – This occurs where one party to the contract is mistaken about the subject matter of the contract. This is a defense to enforcement of the contract if the other party knew the mistaken party was making a mistake when the contract was formed.

 

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10 things not to say when you are socializing with American colleagues and business partners

On Socializing with American Colleagues

socializing with American colleagues

So you are taking an intensive English course in order to prepare for an important business meeting in America with your American colleagues who you have never met even though you have been colleagues for years.

You are excited and nervous at the same time. But you think you are prepared. You have learned a lot in just one week of intensif anglais and think you pretty much have the hang of what it takes to successfully communicate in English in a business setting. But there is just one thing: you are worried about the social activities that have been planned by your boss. While you know how to write effective emails and handle business calls and draft contracts, you are not so sure about socializing with American colleagues. What should you say? What should you not say?

You are right to be concerned. Success in business, whether as a lawyer or other business professional, is more than just completing your intensive course  in legal English or Business English. It is also about acquiring cultural sensitivity for those with whom you associate and conduct commerce. This works both ways, of course. Some Americans do need to be more culturally sensitive to the cultural nuances and differences of others, just as much as some non-Americans need to remember that “being American” is not an abstraction. There is flesh and blood behind all that bravado. And when conducting business, failing to understand this can potentially result in “blowing” deals that otherwise would have been inked.

So what are 10 things to avoid saying when socializing with American colleagues?

1. Unless you know this person very well, it is impolite to tell an American, “I hate your President.” The problem with this statement is that it is absolute, negative and potentially insulting to the listener. You could be talking to a major supporter of this particular president. You may be talking to someone who is also a hater of the President but they may not want to hear these sentiments from a stranger or a non-American.

Sure, not every American agrees with the policies of every President who holds the job. But just because they did not agree with everything that the President did does not mean they want to hear what an “idiot” you think their President is. This can be so undiplomatic, it could actually result in a loss of goodwill between you and the listener. And if this is a potential business partner, it could be the beginning of a deal gone bad.  So if you hate the President of the United States and you think the President is an idiot, do not tell it to your American colleague and potential business partner. Keep it your little secret. OK? It’s better.

2. Try to avoid telling an American, especially an African American, “Obama is the only one,” meaning that of the millions of African Americans in America, there is only one who is competent enough and smart enough and acceptable enough to be able to win the presidency of the United States. Americans have proven they are open-minded people who believe in meritocracy. Many, no matter their race and ethnicity, will find such a statement narrow-minded, insulting and racist.

3. Never ask an American, “how come Americans are so fat?” It is probably true that a large percentage of Americans are heavier than their Asian, European and African counterparts. But it is also true that some of the fittest people on the planet are Americans. Look at the Olympics and any competitive world sport. There are, in fact, a large subsection of the American population that takes health and fitness very seriously; and indeed, millions of Americans are slim and fit – even more than the world average. So do not generalize when socializing with your American colleagues and business people on this point, even if you may think “all” Americans are obese and even if you find this notion hilarious.

4. Never imply to an American that McDonalds is the main daily cuisine for the average American. Yes, many Americans proudly consume Mcdonalds burgers and fries on a fairly regular basis. But chances are they also appreciate other types of foods as well. Not every American likes fast food. And by the way, a lot of Parisians flock to McDonalds daily for lunch these days so if MacDonalds is good enough for the French, who take their food so seriously, then by all means, it can’t be so bad that some Americans enjoy it from time to time.

5. It goes without saying that you should not generalize and say to your American colleague, “I think Americans are bullies.” There are bullies in the country, of course. A lot of them. Maybe too many. But there are bullies everywhere in the world. So if you are referring to a specific bully or bullies, you should clearly make that point and not let it seem like you are generalizing. Because many American are NOT bullies and do not condone this type of behavior.

6. You probably don’t want to ask or imply to an American the notion that “All Americans are gun crazy serial killers.”  Sure, there is an alarming amount of gun violence in the United States. But it is also true that there are lots of Americans who do not own guns and have never touched a gun or shot a gun. And even among those who do own guns, it is a very small percentage that goes out and commits mass murder. So even though the media and movies make it seem otherwise, you don’t want to get trapped in this discussion in a social setting with your colleagues. Gun rights are a sensitive issue in the country and could be too controversial a topic when socializing for business.

7. There is the stereotype that “Americans are dumb, ignorant and stupid.” Obviously you do not want to say anything like this with your business colleagues. A lot of the technological advancements the world enjoys comes from American invention. So obviously some people in the country are a little bit smart and such a stereotype – even an implying of this stereotype – can be highly offensive.

8. While the stereotype that “Americans put work over everything else” is not horribly negative, you still want to avoid insinuating this because it is not true of all Americans. In Silicon Valley, for example, companies specifically make a point of encouraging and supporting life/work balance for their employees.  It is true that there are still many white shoe law firms that value their employees based on how long the employee stays at the office versus going home and spending a few hours per day with their family. But it is wrong to assume all firms are like that and that all Americans care only about work and consumption.

9. Americans are loud is another common stereotype. Some are; not all. Again, don’t make these generalized comments in a business setting because you never know who the listener is.

10. The notion that “all Americans are racist” or that all Americans will tolerate racist views and comments is a dangerous one. Like any other country in the world, America does have its share of racist people. Who can deny that? But, especially in a work or business setting where you are socializing for business it is folly to assume you can make so called racist statements with impugnity just because you and the listener are from the same group. Again, you never know who the listener is and what implications these types of comments will have for you and your firm. If you are referring to a specific event or events that were clearly racist, fine. But in your business meeting, surely, you have other things to discuss than these types of controversial topics.

 

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BUSINESS ENGLISH ROLE PLAY FOR NEGOTIATION

Many Business English students have asked for business English role play exercises. This business English role play is the first of many to come.  It involves a negotiation between two business men in the Emirates.

Imagine that Mr Smith is an American businessman who has arrived in Abu Dhabi to meet with Mr Khan who heads an oil and gas company in the Middle East.  The two gentlemen will be discussing a deal to build a pipeline in Subsaharan Africa to drill for oil. Get a partner and role play this discussion.

For an example of the type of discussion you could have, see below:

BUSINESS ENGLISH ROLE PLAY

 

Mr Khan: So did you find your way here okay without any problems?

Mr Smith: Yes. It was a smooth taxi ride from my hotel. No complaints whatsoever, Mr Khan. Thank you for asking.

Mr Khan: Good. Are you enjoying the weather? Too hot for you? Just right?

Mr Smith: Oh, splendid.  I am sun and sea type of a guy myself born and raised in Corpus Christie. I enjoy the outdoors, this is definitely my kind of weather.

Mr Khan: Oh good. Sometimes Westerners find our climate a bit too hot. Good to know you can handle it. So let’s cut to the chase, shall we. So as you know we are close to closing a deal with the government of Eritrea to build a new pipeline in the north of the country that will allow us to drill hundreds of tons of crude oil without too much environmental impact. It’s expected to be a bonanza and everybody wants in on this deal. We’ve got some Chinese partners who are interested in partnering up on this and as a matter of fact we are scheduled to meet today.  We are pretty close to a deal. But we wanted to talk with you guys first before we talk with them. Are you ready to make a deal?

Mr Smith: Yes indeed.

Mr Khan: We are looking for an initial investment of USD $200 MILLION in cash wired to our account in Dubai at Emirates bank within 24 hours of closing on the deal.

Mr Smith: We are very interested in making a deal. We’ve done all the due diligence and it looks like a solid project, it does check all the boxes for us but of course it will depend on the final terms. We would like a minimum of 45 percent stake in order for this to make sense for us.

Mr Khan: 45 percent? That is totally out of the question. The maximum we can offer you is 25 percent.

Mr Smith: There seems to be some kind of mistake. Clearly 25 percent is way below what you are authorized to offer and what I am authorized to accept.

Mr Khan:  Thirty percent then. That is our best and final offer, take it or leave it.

Mr Smith: Excuse me, Mr Khan but my understanding from my superiors is that the final decision for this project rests with Mr Karim Nadel Al Khomeni. And Mr Nadel just this morning before I arrived at your office personally assured me that a 45 percent stake was within the realm of possibility for this project. Now, I know Mr Nadel is currently in Qatar and cannot personally attend this meeting in person-

Mr Khan: I’m sorry, excuse me, Mr Smith. You spoke with Mr Nadel this morning from his home in Qatar and he informed you that a 45 percent stake in this project was possible?

Mr Smith: yes, indeed.

Mr Khan: This is news to me, Sir. I am afraid I will have to speak with Mr Nadel before further talks on this matter.

Mr Smith: I’ve got his contact details we can call him now and put him on speaker phone I am sure he won’t mind.

Mr Khan: No, no, no, no, no. I don’t think that would be a good idea. I would need to speak with Mr Nadel privately and get back to you on this matter. Would you mind if we postpone further discussions till tomorrow?

Mr Smith: Well, I suppose not however I was in fact scheduled to fly back to Texas tomorrow evening. I guess I can always cancel the flight if need be.

Mr Khan: Thank you for your understanding, Mr Smith and do excuse this confusion.

Mr Smith: Of course it’s no problem. Shall we reconvene tomorrow then?

Mr Khan: Yes, tomorrow.

Both men get to their feet and shake hands.

 

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Now it is your turn to act out your own business English role play. You do not have to use the same approach you can be totally creative and original. Have fun with it and focus on having a “natural” dialogue.

 

NEXT: Welcoming a visitor in English to your country

AFTER: Business Lunch English

PARIS: Formation Rédiger des Contrat en Anglais, VOCABULAIRE – Essential English Contracts Vocabulary

Formation Rédiger des Contrat en Anglais, Paris – Essential English Contract Vocabulary

Avant que vous rédigez des contrat en anglais, vous devez connaître le vocabulaire des contrats en anglais. Les expressions suivant sont des vocabulaires basique pour rédiger des contrats en anglais.

 

Est ce que vous connaissez ces mots?

 

  1. Agreement
  2. Offer
  3. Acceptance
  4. Consideration
  5. Article
  6. Clause
  7. Breach
  8. Negotiation
  9. Meeting of the Minds
  10. Parties
  11. Assignment
  12. Multi-lateral
  13. Force majeure
  14. Multi-party
  15. Specific Performance
  16. Compensation
  17. Damages
  18. Terms
  19. Binding
  20. Redress
  21. Revocation
  22. Stipulation
  23. Arbitration
  24. Dispute resolution
  25. Undue Influence
  26. Fraud
  27. Enforceable
  28. Mistake
  29. Unilateral Contract
  30. Unilateral Mistake

 

TROUVEZ UNE LISTE COMPREHENSIVE DES TERMES ET VOCABULAIRES POUR REDACTION DES CONTRATS EN ANGALAIS A CE LIEN.

 

ELG Consulting vous offrez des formation des contrat en anglais. Nos formations sont des cours intensif chez votre bureau à Paris ou les endroits proche. Normalement, ces formation sont durée 20 heures est sont mené par un avocate américaine. Nous pouvons adapté la programme en fonction de votre domaine principale et votre but. Nos formation rédiger des contras en anglais sont bien formulée pour les avocats, juristes, hommes des affaires, dirigeants et salariées.


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Legal English: A little glossary of common English vocabulary for international lawyers

Common English vocabulary for international lawyers

COMMON ENGLISH VOCABULARY FOR INTERNATIONAL LAWYERS

International lawyers who interact with American lawyers or American courts will find that there are common English vocabulary for international lawyers , i.e. lingo or lawyerspeak that goes with the common practice of law. Sure, a lot depends on the area of practice but some words are fairly common no matter what the area of practice.

Below is a random list of common English vocabulary for International lawyers who want to improve their Legal English.  Can you define them? These common English vocabulary for international lawyers were pulled from different areas of law. Can you think of any other  common English vocabulary for International lawyers that are not listed but that you think will help you improve your LEGAL ENGLISH skills?

 

Common English vocabulary for international lawyers : A LITTLE GLOSSARY OF LEGAL TERMS

Agreement – A negotiated arrangement between parties as to certain course of action they will take.

Arbitration – An out of court proceeding with binding effect in which a dispute is resolved by one or more persons who have been designated as arbitrators or arbiters by the parties in the dispute.

Assignment –The transfer of all rights, claims, duties and obligations under a contract to a third party.

Authenticate – to verify the veracity, truth and reliability of a document

Breach – to fail to perform one’s duties under a contract

Case law – under the common law it is the body of prior cases or “precedent” upon which judges and lawyers rely to determine what the law is in the case pending; by extension, it related to this notion of stare decisis whereby courts are bound by their previous decisions

Contract – An Agreement between two or more persons to take a certain course of action where there is an offer, acceptance and consideration.

Common Law – Common Law (as contrasted with statutory law), also known as case law, or precedent, is judge made law vis a vis laws created by the legislature.

Common Law Legal System – A “common law system” as contrasted with a “Civil Law Legal System” is a legal system that rests on the principle that similar facts and cases should be treated the same; thus in a common law system the court is bound by stare decisis, I.e; the court must follow the legal  reasoning used in the preceding cases; that is the courts are bound by legal precedents.

Defendant – the defendant is the person being sued in a legal proceeding; sometimes  the term defendant is used in a criminal context and “Respondent” is used in a civil context, like in a family law matter for example. But the terms “defendant” and “respondent” are essentially synonymous under American law and are often interchangeable. It really depends on the court and which word the court generally uses. So you have to consult the practice book for the particular jurisdiction. One way to look at it is the “Defendant” is sued and this process is usually commenced with a “complaint.” The Respondent is not so much sued as being hauled into court for some reason and the respondent usually receives a “petition.” How is a petition different from a complaint?  Well, a petition usually is filed to get personal relief; as in a divorce action. A complaint is more about getting the court to punish or compel a party to do something – as in a criminal proceeding for example.

Directive – this is an order or instruction from a higher authority.

Draft – in a Contracts context, it is the version of an agreement (or document)  that is not final and thus would normally not be binding.   In a non-contracts context, it simple means a working version of a document that had not been finalized as far as editorially, as far as terms, as far as issues, as far as formalities.

Draft Agreement – A draft agreement is a version of a contract that serves as a model for a particular type of agreement.

Endorsement – In law, an endorsement is a signature.

Enforceable – In contracts, it describes an agreement whose performance can be compelled judicially by operation of law.

Execute – to execute a contract is to carry through with the obligations and duties which were created by the contract.

File – To file an action means to officially put the action on the court’s calendar by purchasing an index number with the clerk

Insolvency — bankruptcy

Intellectual Property Intangible assets and “property” which are the result of creative endeavors which receive legal recognition and protecction Under most legal systems in the form of copyright protetion, trademark protection, patents and industrial design.

Joint and several liability liability of more than one person that can be attributed to one or all of a group of persons.

Litigant – a party in a litigation.

Litigation – a legal dispute, typically a civil matter (criminal matters are more “proceedings”)  that is being heard before a court.

Matter – In law, it is a legal issue or case or otion that is either pending or developing before the courts.

Notarize – to notarize a document is to authenticate the signature of the person who signed the document; this is carried out by a notary public.

Party – a party is an individual in a lawsuit; it could be plaintiff, defendant, petitioner, claimant, repondent…any person who is named in the suit is a party.

Patent – a patent is intellectual property interest in an invention.

Petition – a formal request made by a party for a particular relief from a court of law.

Petitioner – a petitioner is the person who files a petition.

Plaintiff – a plaintiff is the person who files a complaint

Power of Attorney – A power of attorney is a formal transfer of authority to act on one’s behalf by one person to another

Practice of Law — The practice of law is the formal term for the work that attorneys do. It includes litigation as well as transactional types of work like Contract law and Real Estate Law. It really covers every and any type of work a lawyer does for his or her client including going to court, drafting documents, giving legal advice and researching the law. It is somewhat of a fuzzy term these days because many non-lawyers in the U.S. are now providing services to clients that have been traditionally the work of lawyers, aka, “practice of law.” This includes accountants, bankers, paralegals and others.

Pro Hace Vice For this matter only. This is a scenario where an attorney not admitted to practice law in a particular jurisdiction seeks special permission from the court to appear in a legal matter before that court.

Remedies – Remedies in law are the types of relief available to an aggrieved party. They include damages; specific  performance (such as with contracts); and equitable relief such as injunctions.

Respondent – The person against whom a petition is filed.

Royalties – Royalties are earnings on intellectual property such as from books, music and natural resources such as oil; in effect, a royalty is an ongoing payment made by one party to use another person’s assets or property. It is a type of licensing agreement that results in regular earnings for the owner of the asset or property.

Shareholder Agreement – An agreement between the shareholders in a corporation.

Statute – A statute is law that is devised and promulgated by a legislature; statutory law can be contrasted with common law which is judge made law.

Tort – A tort is a harm or injury inflicted on a person by another person or thing.

Tribunal – A tribunal is a judicial body like a court

Trier of Fact – The trier of fact is either the judge or the jury; it is the person or persons who listen to the facts of a case to determine the true facts.

Unauthorized – Something that is unauthorized is either illegal, or impermissible.

Vicarious liability – Vicarious liability refers to the responsibility a “superior” shares when a subordinate acts on behalf of the superior. It is basically an agency relationship that is construed to exist under the principle of respondeat superior.

 

NEXT: How to deal With Aggressive American Lawyers and Negotiators

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Understanding the Structure of the American Court System: An overview for foreign lawyers contemplating litigation in U.S. courts

Some non-American lawyers with legal matters pending before courts in the United States find the U.S. Court system totally confusing. The thing about the structure of the American court system is that not even American lawyers fully understand it; and so foreign lawyers should not let themselves get frustrated about something that possibly could take a life-time to learn even if they were American trained lawyers.

Foreign lawyers who find themselves having to litigate in American courts would obviously have local counsel to assist them since as a general rule, a foreign lawyer cannot practice law in America without being admitted to one of the states’ bar. Still, even so, with the ever increasing number of international transactions most of which involve some type of contractual dispute, it is not totally unreasonable for a foreign lawyer to want to have a basic comprehension of the American court system. It helps in every way not the least of which is to help the foreign lawyer know the right questions to ask when interviewing local counsel for possible co-counsel work.

So what is this structure? Well, here is the short of it: there are essentially two court systems in America. The America judicial structure is divided into the State and Federal court systems.  Chances are, as an international lawyer, if you have to “avail” yourself of the Courts’ remedies in the United States, you will be in Federal court under the “Diversity of Citizenship” rules. That is, it is the Federal Courts, not the state courts, that normally hear cases involving foreign citizens and companies. There are, of course, exceptions to every rule.

The reason the US has two court systems is because the Constitution of the United States requires it through its delegation of duties to the Federal government and its reservation of certain rights and duties to the State government. So there are some types of cases that either the Federal or state courts cannot “hear” constitutionally since they do not have “jurisdiction” over the “subject matter” of certain types of cases pursuant to the constitutional dictates. (Those are two nice “legal English” words: jurisdiction and “subject matter.”)

 Federal Court System

The federal court system in the U.S comprise of:

1. U.S. District Courts (there are 94 of these across the country; each state has at least one)

2. U.S. Circuit Courts of Appeal (there are 13 circuit courts in the U.S. New York is in the 2nd Circuit)

3. The United States Supreme Court (there is only one federal supreme court in the U.S )

4. U.S Court of International Trade (This court handles international trade disputes)

5. U.S. Court of Claims (this court handles claims against the U.S Government)

6. U.S Bankruptcy Courts (This court handles cases falling under the bankruptcy code of the United States)

7. U.S. Magistrate Courts

8.  U.S. Tax Court (This court handles Tax cases where there are “tax deficiencies”)

9. U.S. Courts of Military Appeals

10. U.S Courts of Veterans Appeal (this court handles cases where there is a denial of veterans’ benefits)

 

State Courts System

The state courts in the U.S are generally broken into four types of courts:

1)  Trial Courts of limited jurisdiction (probate, family, traffic, juvenile, small claims, municipal)

2. Trial Courts of General jurisdiction (civil and criminal cases)

3. Intermediate Appellate Courts

4. Highest State Courts*

 

Generally speaking, if you are  foreign lawyer who finds him or herself in an American court, chances are you will have to hire local counsel in the U.S to assist you with litigating the matter since you must be a member of the state bar (both state and federal) in order to appear before an American court. Moreover, you will not likely be in state court since it is the Federal court that has jurisdiction to hear “diversity of citizenship cases.” However, even with the diversity rule, your case must be alleging a cause of action in excess of $75,000 in order to be eligible for Federal court jurisdiction over the subject matter of your case.

However, even if you do not have a diversity of citizenship or do not meet the $75,000 minimum criteria, if your case involves a “federal question” you may be able to bring the case in federal court. A Federal question is  any matter specifically designated in the U.S. Constitution as being the “province” of the federal government. This includes such issues as patent, copyright and trademark cases, antitrust, securities and banking regulations, and cases involving ambassadors and other high ranking public figures.

That all said, it should be noted that there is much interplay between the two courts. In other words, certain variables in particular cases could blur the line between federal jurisdiction and state jurisdiction and so a case whose subject matter would normally be the province of a state court jurisdiction, conceivably could wind up in federal court, and vice versa. For example, a class action seeking more than $5 million dollars will probably be heard in federal court even if there is no federal question involved.

Source: Understanding Federal and State Courts: www.uscourts.gov

How to deal with aggressive American lawyers and negotiators

Many lawyers around the world  have a perception of American lawyers as being tough, bull dog negotiators and litigators. Some may even be a little bit intimidated at the thought of having to go into a meeting with an American lawyer or law firm to negotiate a tough deal, especially when their English is not “perfect.” Below are a few tips to help you level the negotiating field:

1. First, remember that these are people, just like you, and they too have their fears and insecurities.

2. Remember that your English is probably a lot better than their French (or German, Russian, Arabic or whatever your primary language happens to be)

3. Good preparation is critical. You have to do your homework. You cannot be under-prepared and expect to exude confidence.

4. Americans, by and large, like to close deals. If they are in the room conducting the negotiation it is because they want to make something happen. So if the deal is good, chances are there will be a meeting of the minds and a contract will be signed. So don’t worry so much. Instead focus on having a win-win outcome.

5. Try to have the negotiation talks in a neutral place.  If it is at their office, they already have a psychological advantage. There are times when there are no other options but on their turf. In that case go ahead and have it on their turf. But you have to prepare yourself psychologically. One way to do that is to be the first to make an offer. And make it the most minimally acceptable deal possible without being totally unreasonable. Right away you put them on the defensive; and you control the initial conversations.

6. Never conduct serious negotiations on the telephone or via email. Face to face human contact is always better because you can see all the non-verbal cues.

7. Be dispassionate, goal oriented and un-emotional. Stick to the facts. Do not bring up past issues if this is someone you have negotiated with before. This meeting is about this deal only. Don’t get into personality clashes and past grudges and current fears. Focus on the object of the negotiation and be sure to steer the talks back to the object of negotiation if the other side gets side-tracked.

8. Don’t let yourself be played; at the same time you should not play games either.

9. Do not budge from your “go to hell number.” Be prepared to end negotiation talks if the other side clearly is not serious or if the other side’s offer is clearly unreasonable and unrealistic.

10. Insist on certain ground rules. For example, there really is no place for name-calling and personal insults in a business negotiation between business people.

 

 

10 Tips for Successful Negotiation with English Speaking Dealmakers

Successful Negotiation in English can be intimidating when your first language is not English. Successful negotiation is all about strategy.

Successful negotiation in English or any other language all about your ability to strategize.  is Negotiation is an unavoidable component of living and thriving in one’s community and world. Increasingly, negotiation is a necessary skill for achieving success in the international arena. What is the point of negotiation? The point is for both sides to come out feeling like they have had a win. In order for both sides to win, both have to be willing to lose at least some of what they have in their “negotiation basket.” It is a strange paradox.

SUCCESSFUL NEGOTIATION
Don’t be intimidated by the other side in a negotiation just because your first language is not English!

Some people think that negotiation means getting everything they want and having the other side get nothing. This is not negotiation. It is strong-arming and gangster warfare. Negotiation is about give and take – on both sides. It is not about winner takes all.

In any negotiation, it is important to think of yourself first and foremost. You have to decide what are your needs and what are your wants. Because this will determine what is negotiable and what is non-negotiable. You never negotiate your needs, for example. But you can always find a want that can be negotiated.

In a business context, negotiation is of critical importance. Negotiation skills can either make or break a business. Successful negotiation is all about preparation.  The following are ten key tips for a successful negotiation.

1.  Distinguish your needs and wants so that you can determine what is negotiable and what is non-negotiable for you and for your business.

2. Know the other side and what they are likely to need and want. That means you should research the party you are negotiating with. See if you can figure out a pattern or modus operandi; this way you can tailor or plan your negotiation strategy to maximize the outcome for you and your business.

3. Only negotiate with people who have the authority to enter into an agreement and close deals. Don’t waste time with people who have no deal making authority, in other words.

4. Know your limit or “go to hell” number and be prepared to end negotiations if the other side goes above or below this number.

5. Know the ins and outs of what you are offering.  Do your homework on the product or service that is the subject of your negotiation.

6. When making your first offer, ask for the maximum and be prepared to negotiate downwards if needed. Do not ask for the minimum and hope to negotiate upwards.

7. Play it close to the vest. The other side should not know the “limitations” of your negotiating basket.

8. Always let the other side feel that they too got to a good deal. include a little “bonus” if you can if doing so does not increase your costs.

9. Understand the difference between an offer, counteroffer, acceptance and other key contract terms.

10. Don’t lose a good deal just because you let your ego get in the way.

NEXT: DRAFTING CONTRACTS IN ENGLISH

 

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