Re: intelligibilty and clarity of texts and communications...


Dr. Jamshid Ibrahim wrote:
SabDor@xxxxxxxxx schrieb:

If you take a bank-customer deposit contract, for instance (as well as
all standard corporational contracts with their customers), the
document may include hundreds of words, complex sentences, conditioned
sections, definitions etc, most of which are rarely addressed.
The problem is that by legal fiction, we, cusotmers of these
corporations, are considered as we "agreed" to these documnets.
This is legal fiction, a very common legal tool. The problem is that it
is very remote from the reality of things (most people, including legal
professionals, never read those "agreements"), and causes many pratical
problems when issues get to courts.

What I'm trying to figure out, is whether the high level of complexity,
and low level of clarity, are actually necessary.
And yes, I already have an opinion. From my own experience (I'm a
practicing lawyer, in Hebrew, in Tel Aviv, for about 15 years), they
are not.

There is a conflict here. Language is never as precise as mathematics
(see the imprecise nature of language I wrote about elsewhere).
Although this ambiguity might appear a disadvantage in fact it is what
makes us human and meets our various needs. Various layers of
communication such as emotions, attitude or just plain communication
cannot be expressed in mathematics at the same time but are implied in
language. Expressing multiple meanings, coding more messages into one
short sentence, playing on words, making jokes, writing literature,
making music and many more are imbedded in a fascinating tool called
language.

I'm not talking about simplifying all language, with all its vast
usages. This is impossible as well as undesired. Legal language, OTOH,
usually aims to create precision, stabilty, clarity. In fact, many
lawyers would agree that simple, short, contracts usually make better
vehicles for acheiving the parties' goals. And yet, legal documents,
and particularly strandrad contracts made by corporations (i.e. banks)
tend to be lengthy and over complicated. The justification for such
contracts is at least philosophically dubious, but also legally so.
ALso, how can we say that one "agrees" to the terms stipulated in such
documents, when 100% of the customers never read them, or able to
understand them? I have to disclose that I'm not an un-biased observer,
as I deal with such contracts on a day to day basis, arguing against
them in courts while representing customers' cases. In many many cases
they are poorly formed, include inherent contradictions and
discrepancies, while aiming to protect the bank against all remotely
mishaps. All this, while the basics of the agreement is usually very
simple, and could be covered in 10 very specific conditions, including
dates, rates etc.


Simplifying legal texts makes expressing the legal intricacies without
legal register difficult. A shortcut is not possible.
This could be true when we consider "meta" legal texts -- such as laws
and regulations, who apply to all contracts, or contracts who relate to
complicated legal realities, like taxes etc. Otherwise there are no
"intricacies". At the end,legal texts are supposed to regulate human
behaviour. What use is there for them if humans do not understand them?

Regards
Doron

.

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