Second Language Legal English
Continuing the series of words that lawyers use, which may have a different meaning in everyday speech. This time we are looking at the word term.
In common use, term means:
A word or phrase used to describe a thing or to express an idea: the musical term 'sonata' dates back to the sixteenth century.
Language used on a particular occasion: she spoke in the strongest possible terms to show her anger at the situation. And, In financial terms, the play was not a success.
A period of time, such as the three terms in a school year, a minister's term in office, or a full-term pregnancy.
To describe the quality of a relationship; I am on good terms with my neighbour.
A form of recognition or understanding: I have come to terms with the fact that I won't be able to walk again.
A lawyer uses the word term in more precise ways.
Terms can mean an initial broad agreement, with the detail to be added and agreed upon later. In a formal setting, such as negotiating a detailed commercial agreement, the parties might call this first stage drawing up heads of terms, where 'heads' means 'headings' or bullet points.
Terms can also mean the complete agreement: Before I act for you, I must ask you to read and sign my business terms.
A formal contract is composed of individual terms, for example:
A condition is a term that, if breached, gives the aggrieved party the right either to end the contract or affirm it. In addition, the aggrieved party can also claim damages.
A warranty is a term that, if breached, does not give the aggrieved party the right to terminate the contract; it gives rise only to a right to claim damages.
An innominate term - the category of term is assessed by reference to the time the breach happens and the significance of the breach at that time.
Terms can be express terms (written in the contract itself) or implied terms (written into the contract by law, agreement or custom).
Term also describes a period of time. A contract of employment that starts on 1 January 2021 and runs for five years is called a fixed-term contract. A 99 year lease is an example of a term of years (sometimes called a term for years), meaning an interest in land that runs for a fixed period of time as specified in the lease agreement.
A term of art
This odd phrase is used for any word that has a particular meaning when used in a specific setting or profession and is different from its ordinary meaning.
For example, the word beta means second, but to a software developer, beta testing implies a product that a select group of users tests before it is released to the public. In general speech, set means a group of things, but to a mathematician, setmeans a collection of objects whose elements are fixed and cannot be changed.
It is the same in law. Here are some examples of terms of art that lawyers use. They do not require any further explanation or definition because there is no disagreement between lawyers about what they mean, but the terms may not be understood or used in the same way by the general public. There are many more.
Hearsay: Spoken or written evidence made by someone other than during his testimony in court which the court is asked to accept as evidence for the truth of what is stated.
Res ipsa loquitur: [Latin: the thing speaks for itself] A principle applied in the tort of negligence. If an accident has occurred of a kind that usually only happens if someone has been negligent, and the state of affairs that produced the accident was under the control of the defendant, it may be presumed in the absence of evidence the defendant’s negligence caused the accident.
Abatement: The termination, removal, or destruction of a nuisance.
Burden of proof: The duty of a party to litigation to prove a fact in issue. Generally, the burden of proof falls upon the party who asserts the truth of a particular fact (the prosecution or the claimant).