Curs 1 Drept anul III Engleza

8/13/2019 Curs 1 Drept anul III Engleza

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Communication and legal language

Introduction & Overview

Lecture 1:


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Contents

Communication:

Definitions throughout history

Forms & models Features & components Effectiveness


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Rationale

In this age of audience fragmentation glo!al presence dataoverload niche mar"eting do#nsi$ing reorgani$ing andaccounta!ility effective oral and #ritten communication s"illsare in demand%

ithout effective communication even everyday tas"s aredifficult if not impossi!le% 'he average person ta"esmessages at face value #ithout evaluating the true meaningand intent of the communication%


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Definitions

Communication is the sending of a message from a sourceto a receiver%

)imple definition *E' comm% is never simple% +e%g%: themisinterpretation of ,apan-s ans#er to the .) demand for

unconditional surrender !efore dropping the atomic !om!/0ence: the need for clear accurate communication%

Communication1 an issue of symbolic interaction+thehuman communicator uses a series of signs that stand foro!ects and ideas/ it means the e4change of meanings#hich are encoded in language gesture visual signs% +)tuartPrice +5667/ 1 Media Studies/


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Communication skillsare some of the most important s"illsthat you need to succeed in the #or"place%

e tal" to people face to face and #e listen #hen people tal"to us% e #rite emails and reports and #e read the

documents that are sent to us% Communication therefore is aprocess that involves at least t#o people 1 a sender and areceiver% For it to !e successful the receiver must understandthe message in the #ay that the sender intended%


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'his sounds 9uite simple% ut have you ever !een in asituation #here this hasn;t happened< =isunderstanding andconfusion often occur and they can cause enormouspro!lems%

If you #ant to !e an e4pert communicator you need to !eeffective at all points in the communication process 1 and youmust !e comforta!le #ith the different channels ofcommunication% hen you communicate #ell you can !every successful% >n the other hand poor communicatorsstruggle to develop their careers !eyond a certain point


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Features of Communication

ubiquity+impossi!le to avoid a central feature of human culture/ continuous+there is no identifia!le !eginning or end to it/

dwells on shared meaning+interaction entails and is a 9uintessentialcondition for communication/

has predictable elements+ensures the understanding ofcommunication partly due to the e4istence of e4pected@conventionalelements that people anticipate and recogni$e/

organized on levels+!t#% t#o individuals@groups of individuals@mass

media and its audiences/ equality vs. inequality+people inha!it different social and personal

positions on gender age ethnicity etc% !asis AB theories of po#errelations/%+=eyers and =eyers: The Dynamics of uman Communication/


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Key Questions

0o# do you use communication to gather interpret andsynthesi$e informationccasionally thin" !ac" a!out #hat the person has said%llo# the person to spea" #ithout thin"ing a!out #hat you;ll

say ne4t%

Don;t interrupt%

#mpathic listeningA'o understand a message fully you haveto understand the emotions and underlying feelings thespea"er is e4pressing%
http://www.mindtools.com/CommSkll/EmphaticListening.htmhttp://www.mindtools.com/CommSkll/EmphaticListening.htm


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F((D9)CK

feed!ac" through body language is perhaps the mostimportant source of clues to the effectiveness of yourcommunication% y #atching the facial e4pressions gesturesand posture of the person you;re communicating #ith youcan spot:

Confidence levels%

Defensiveness%

greement%

Comprehension +or lac" of understanding/%


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evel of interest%evel of engagement #ith the message%

'ruthfulness +or lying@dishonesty/%

Feed!ac" can also !e formal% If you;re communicatingsomething really important it can often !e #orth as"ing9uestions of the person you;re tal"ing to to ma"e sure thatthey;ve understood fully%


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K(6 420+T

It can ta"e a lot of effort to communicate effectively%y learning the s"ills you need to communicate effectively

you can learn ho# to communicate your ideas clearly andeffectively and understand much more of the information

that;s conveyed to you%s either a spea"er or a listener or as a #riter or a reader

you;re responsi!le for ma"ing sure that the message iscommunicated accurately% Pay attention to #ords and

actions as" 9uestions and #atch !ody language%


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Di" Deeper

Further resources:

###%ccmsAinfo!ase%com

Chapter 5 in: >!er )cot% Contemporary $usinessCommunication %in the Oeader&


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TH( D((L24M(+T 2FL(5)L L)+53)5(

Perhaps the language of la#yers is so convoluted simply!ecause of the conservatism of the profession and itsveneration of history and tradition% 'o some e4tent legal

English is indeed a product of its history% It is a story ofngloA)a4on mercenaries atinAspea"ing missionaries)candinavian raiders and orman invaders all of #hom lefttheir mar" not only on England !ut on the language of itsla#%


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ummary

lthough the ngloA)a4ons seem to have had no distinctlegal profession they did develop a type of legal languageremnants of #hich have survived until today% E4amplesinclude #ords li"e bequeath' goods' guilt' manslaughter'murder' oath' right' sheriff' steal' swear' theft' thief' ward'

witnessand writ.

'he ngloA)a4ons used not only >ld English as a legallanguage !ut also atin% lthough atin #as introduced to

England during the Ooman occupation around the time ofChrist it !ecame a maor force only after the arrival ofChristian missionaries in 86?% efore long atin #as thelanguage not only of the church !ut of education and

learning%


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'he association !et#een literacy and the church !ecame sostrong that the t#o #ere almost synonymous% 'he terms cler"+someone #ho can #rite/ and cleric or clergy +priest/ derivefrom the same atin term% For centuries English courtsrecogni$ed a type of immunity for the clergy to avoid thegallo#s you simply had to read a verse from the i!le+sometimes called the Nnec" verseN/% later influence on thelanguage of the la# #as )candinavian in origin% During theeighth century Qi"ings !egan raiding the English coast and

eventually settled do#n% 'he English !orro#ed from these)candinavians the most important legal #ord in the Englishlanguage: the #ord la# itself% a# derives from the orse#ord for NlayN and thus means Nthat #hich is laid do#n%N


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>ddly the use of French in the English legal system gre#at the very time that its survival as a living language #as inserious 9uestion%

.nhappiness a!out this state of affairs led to #hat might !e

considered the first plain English la#% In 5372 Parliamentenacted the Statute of (leading' condemning French asNun"no#n in the said OealmN and lamenting that parties in ala#suit Nhave no Mno#ledge nor .nderstanding of that #hichis said for them or against them !y their )ereants and otherPleaders%N 'he statute re9uired that henceforth all pleas !eNpleaded she#ed defended ans#ered de!ated and udgedin the English 'ongue%N Ironically the statute itself #as inFrench


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)i4 hundred years after the orman Con9uest and aroundthree hundred years after French #as virtually a dead letter inEngland it #as still !eing used as a professional language !yEnglish la#yersecause it #as the main language of the profession for so

many centuries French has had a tremendous influence onlegal language% vast amount of legal voca!ulary is Frenchin origin including such !asic #ords as appeal' attorney'bailiff' bar' claim' complaint' counsel' court' defendant'

evidence' indictment' !udge' !udgment' !ury' !ustice' party'plaintiff' plea' plead' sentence' sue' suit' summon' verdictandvoir dire%


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'hings #ere similar in the .nited )tates% Despite initialantipathy in the colonies to#ards the legal profession the

mericans soon reali$ed that they needed to develop asystem of ustice% 'he only real model at their disposal #asthe English one% 'he fledgling merican states adopted not

only England;s common la# !ut its language as #ell%onetheless criticism of legal language continued% 'homas

,efferson complained a!out the ver!osity of statutes theirendless tautologies and Ntheir multiplied efforts at certainty

!y saids and aforesaids%N *et merican legal languageended up !eing very similar to its English parent%


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Clearly the legal profession has tended to !e 9uiteconservative especially in the past% ut old ha!its andtradition cannot fully e4plain #hy modern la#yers persist inusing archaic argon passed do#n over the centuries%ctually la#yers can !e 9uite creative and innovative #hen

it suits their purposes% 'hey have readily coined neologismsli"epalimony +alimony paid to a NpalN or unmarried partner/and hedonic damages +money damages for loss of thepleasure of life/%


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)till la#yers seem to trot out their most ancient redundantand convoluted phrases #hen #riting documents directly forclients particularly #ills% 'he average #ill +for an estate#ithout potential ta4 lia!ility/ is not conceptually all thatcomple4 and most of the language is pure !oilerplate% *et

la#yers are a!le to charge hundreds of dollars for draftingone% ll too often comple4ity of language mas"s simplicity ofcontent%


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,ustifying fees is not the only reason for the persistence oflegalese% 'heir distinctive language allo#s la#yers to mar"themselves as mem!ers of the profession% a# studentssoon learn ho# to Ntal" li"e a la#yer%N .se archaic #ords li"eaforesaid' herein and to wit% Em!ed them in convoluted

synta4% nd never use one #ord #here a longer phrase isavaila!le%

Perhaps the !est #ay to sound li"e a la#yer is to thro# in

as much legal voca!ulary as possi!le% 'here are literallythousands of technical terms from #hich to choose% ords ofatin and French origin are particularly impressive%


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L(5)LL6 90+D0+5 C2+TR)CT

'o !e legally !inding a contract needs t#o essentialcomponents: 5/ an agreement and 2/ consideration% ithinthe agreement and consideration lies an assortment ofprovisions that add to the legality of a contract% 'hese includethe offer performance terms conditions o!ligations

payment terms lia!ility and default or !reach of the contract%


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'he agreement component involves offers counterAoffersand eventually #hat contract la# calls the Nmeeting of theminds%N n agreement can !e either oral or #rittendepending upon the contract% If you hire a ta4i to drive you tothe airport then it is an oral agreement that you #ill pay the

driver a certain sum #hen you reach your destination%Contracts #hose agreements must !e in #riting include realestate contracts and contracts that last more than a year%Every state has its o#n legal re9uirements and you should

consult these re9uirements to find the specific regulationsthat pertain to your type of contract%


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'he agreement process involves one party offering terms andconditions that are either accepted or reected !y the otherparty% If the other party changes any term or condition of theoffer then the offer !ecomes a counterAoffer% t this pointeach party negotiates the terms and conditions of the offer

until they have a meeting of the minds% 'his is #hen anagreement has !een met and a contract can !e dra#n up%

oth parties must !e competent enough to enter into thecontractual agreement% 'hey may not !e minors +under 5

years of age/ under the influence of drugs or alcohol or ofunsound mind% 'hey also must have the legal po#er to enterinto the agreement for instance #hen representing acompany%


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For an agreement to !e legal and !inding it must have someform of consideration% 'his means that all parties involvedmust receive consideration or something of value% >ther#iseit is considered a gift rather than a contract% 'he promise of agift is not necessarily !inding depending upon the

circumstances% .sually consideration involves one partygiving something such as a product or service and ine4change the second party gives some form of monetarycompensation%


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'he consideration component of the contract !rings upseveral other provisions that should !e addressed such as:

2bli"ations and Conditions of t&e ContractA #hat eachparty needs to do to fulfill the terms of the contract

4erformanceA ho# #ell each party performs the terms of thecontract

4ayment TermsA a schedule that specifies #hen allpayments are to !e made

LiabilitiesA defines the lia!ility of each party in terms of thecontract


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9reac& of ContractA #hat #ill happen should either party failto fulfill their end of the agreement

lthough not legally re9uired each contract should containseveral provisions "no#n as N!oilerplateN provisions% 'hese

include:r!itration Clause A ma"es allo#ances so that disputes are

handled !y an independent ar!itrator

Entire greement Clause A states that #hat is #ritten in the

contract is #hat the agreements and conditions of the contactare and no previous agreements or conditions are applica!le

Force =aeure Clause A states that should somethinghappens !eyond the control of either party +such as a tornado

destroying a house


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Force =aeure Clause A states that should somethinghappens !eyond the control of either party +such as a tornadodestroying a house/ then the contract is no longer valid%


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)ho is going to own what*ow is risk going to be distributed*

#. Clarify and Transfer 2$ners&ip of 0ntellectual 4roperty

For companies #ho hire contractors to create logos#e!sites or soft#are for the company it is critical tounderstand the follo#ing counterAintuitive concept% .nder thecopyright statute if you don-t have a #ritten assignment ofcopyrights from the contractor #ho created the #or": *>.

D>-' > '0E C>P*OIL0' EQE IF *>. PID F>O'0E COE'I> >F '0E >OM


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%. Limit Liability #ell drafted contract can greatly limit a company-s lia!ility in

the follo#ing #ays:

by limitin" statutory $arranties that apply #hether you

"no# they do or not% )uch #arranties can !e e4cluded #ithvery specific legal language and can save your companyhuge headaches and potential damages especially if you arecreating soft#are%

by e/cludin" cra;y types of dama"esthat are availa!leunder statues and common la#%


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by limitin" t&e total amount of dama"esavaila!le to theother party% If you preformed the #or" for a specific fee it ispossi!le to limit the amount of potential damages in thecontract to the amount you have !een paid% ithout limitinglia!ility in the contract a little deal may end up costing you far

more than you had ever imagined%


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ia!ility hidden in statutes and the common la# is li"e anice!erg% If you don-t "no# it is there you may hit it and yourstartup #ill go under li"e the 'itanic% a#yers #ent to la#school to "no# ho# to spot lia!ility ice!ergs%

) T(RM 2F 3(


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) T(RM 2F 3(


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First the site o#ner may not even "no# the identity of theother party to the contract R the #e!site user% 'he #e!siteo#ner essentially sends out an offer to use its #e!site andpeople across the #orld may accept% 'his acceptance !y useis good enough to form a legal contract%

)econd the terms of the #e!site contract can !e unilaterallychanged !y the #e!site o#ner at any time !y its very terms%

2R)L C2+TR)CT )R( TH(6


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2R)L C2+TR)CT)R( TH(690+D0+5

>ral contracts can !e as !inding as #ritten contracts% ut#ithout a #ritten record it can difficult to prove #hat you haveagreed to% If your deal goes south you may !e endlesslychasing the truth% =a"e it easy on yourself and #rite up anagreement%

>ften parties enter into agreements that are partially oral andpartially #ritten !ased on a handsha"e and a fe# letters ormemos that may indicate some of the aspects of theagreement #ithout actually !eing contracts themselves% In

this case the NagreementN is contained partly in the oralagreement and partly in the letters and memos%


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If you choose to use an oral contract !ased on one of thefollo#ing rationali$ations perhaps you should reconsider yourdecision:

0=m too busy to $rite it do$n. legal !attle over your oral

contract #ill ta"e much more time than putting together a#ritten contract%

T&e ot&er party $on=t a"ree to put it in $ritin".Oeconsideryour relationship% 'he #orld is full of honest people and none

of them mind putting #hat they promise in #riting%0 trust t&e ot&er party.Don;t !ase any !usiness decisionsolely on trust%

T


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T&e deal is too complicated to $rite do$n.>dds are that itis not too complicated you ust don;t understand it% 'a"e thetime to #rite out the deal and hash out any unclear points #iththe other party as you go along% If you don;t understand thedeal ho# #ill a udge or ury understand it #hen you try to

enforce it

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Curs 1 Drept anul III Engleza