Corporate & Securities Law

Latinisms in Contracts

By Ken Adams

In the current edition of New York magazine, someone agitating about Facebook’s new terms of service is quoted as saying “No Latin! I’m not sure what forum non conveniens means, and I shouldn’t have to [know].”

As a general principle, No Latin! makes sense to me. I’ve found on the SEC’s EDGAR system contracts filed in the past year that contain one or more of the following Latinisms:

• ab initio
• bona fide
• de facto
• de jure
• de minimis
• de novo
• ex gratia
• ex parte
• ex post facto
• in personam
• in rem
• inter alia
• mala fide
• mutatis mutandis (see MSCD 12.195)
• pari passu (see comments)
• prima facie
• pro tanto
• quid pro quo
• qui tam
• res ipsa loquitur

Some Latinisms have become so ingrained that they can now be accepted as English-for example, pro rata and vice versa. I suggest that your contracts would be clearer if you were to dispense with the rest, including those in the above list. Instead of using jargon, express the intended meaning in standard English.

Full post as published by AdamsDrafting on April 23, 2009 (boomark / email).