Sunday, February 22, 2009

May even contracts be euphonious

Fowler ( complained elegant variation — replacing nearby repeated words with synonyms — was the unfortunate offspring of popular rules against word repetition, but today, the rule against elegant variation begets excessive tolerance of expressive monotony, with elegant variation blamed for effects of other writing vices. Consider this example, from Wayne Schiess:
The U.N has been working in the region for more than three years and says it has been making progress in resolving conflicts among factions. Local officials, however, are not as enthusiastic about the work done by the world union.

Wayne thinks the elegantly varied "U.N." momentarily confused him, but "enthusiastic" — ambiguous on whether comparing local leaders' enthusiasm to the U.N.'s work or its self-praise — is the main problem. The reader must look to the succeeding phrases to disambiguate enthusiasm's object and, misleadingly, first encounters "work," not speech. "World union" wouldn't confuse except for the ambiguity of "enthusiasm" and the subsequent misdirection. Changing "enthusiastic" to "favorable" clarifies the sentence, even retaining the elegant variation; deleting the final phrases ("about the work done by the world union"), without substitution, entirely avoids the forced choice between Euphony and Clarity.

High tolerance of repeated proximate words is more justified in transactional law than in brief writing. From overemphasis in its transactional stronghold, this tolerance generalized to all legal writing. But Euphony, although subordinate to Clarity, remains relevant in drafting. I disagree with Greg Kochansky when he writes, "A contract is like a computer program. It's meant to be dry, boring and supremely consistent." ( Consistent, yes, but, if Clarity doesn't conflict, a contract drafter — seeking to persuade a party to sign and, sometimes, a court to enforce — should strive for Euphony.

No comments:

Post a Comment