Language, tradition and risk: Why legal doublets refuse to die

Take “will and testament” as an example. There was a historical distinction between a “will” (which dealt with immovable property) and a “testament” (which dealt with personal movable property). But if the legal significance in a doublet has disappeared, why is it still used? At a psychological and practical level, many lawyers experience “severance anxiety” – a deeply ingrained reluctance to change tested wording. They may accept intellectually that “will” and “testament” are now functionally identical, yet many retain a residual fear that a court may one day find meaning in the omission. For some, the rational justification is absent; they use archaic phrases only out of habit. The rational concern, though, is reinforced by interpretive principles¹ that might sometimes require a court to treat apparent redundancies as deliberate and meaningful. A court may reason that a skilled drafter would not have included a word unless it was intended to add something. Words used out of habit or caution may then be given significance by the courts. The risk that courts may “read in” meaning makes drafters even less inclined to change habitual wording.

¹  Such as ut res magis valeat quam pereat – meaning literally, “it is better for a thing to have effect than to be destroyed”. This operates in our law as a canon of construction: a court should prefer an interpretation that renders a provision operative and effective, over one that would render it meaningless, void or unworkable. A document should, where possible, be construed so as to give effect to every word rather than treat any word as superfluous.

The legal profession itself is a powerful agent for conserving language. Junior lawyers are trained on precedents, not blank pages. These precedents are valued because they are “tried and tested”, evolving incrementally rather than being radically modernised. Phrases like “will and testament” are absorbed without their origins being questioned. They are used through repetition rather than active choice.

Legal documents - particularly those concerning death, property, and fundamental rights - also have a ceremonial element. The traditional language is associated with seriousness and authority, by contrast with everyday correspondence. This ceremonial language does nothing to ease understanding, but it affects how carefully parties approach the document. Stripping away ceremonial language may be perceived as stripping away some of the document’s gravitas.

The Consumer Protection Act 68 of 2008 requires “plain and understandable language” in consumer contracts. That Act applies to contracts below a threshold value but not to high value, specialist documents like wills or complex commercial contracts. The parties to these documents are often sophisticated and less in need of statutory plain language protection. In these documents, any unanticipated interpretation introduces risk which could be catastrophic.

Some doublets and triplets do have justification, but many do not and should be weeded out. These phrases use words that mean the same thing, making one of the words unnecessary:

• “Cease and desist” - Both words mean to stop. Neither adds meaning to the other.
• “Null and void” - Both mean: having no legal effect. This might be the best example of pure legal tautology.
• “Sole and exclusive” - Both words convey the same meaning.
• “True and correct” - Found in most affidavits; “true” and “correct” are interchangeable in that context.
• “By and between” - The word “by” in “this agreement made by and between the parties” adds nothing.
• “Unless and until” - Both words introduce the same conditional trigger.

Care must be taken though when cleaning up legal language. Many doublets look redundant but do retain meaning, either historically or in current legal practice. Such as:

• “Full and final” - “Full” speaks to completeness: it captures everything owed, with no outstanding balance. “Final” speaks to finality: there can be no future claim in the same matter. The two words have distinct functions.
• “Rights and remedies” - A “right” is a legally protected entitlement; a “remedy” is the mechanism to enforce a right. A right can exist without an available remedy, and so the phrase is used correctly to preserve both.
• “Indemnify and hold harmless” - Traditionally, to “indemnify” means to compensate a party after a loss has been suffered. To “hold harmless” means to prevent the party from suffering loss in the first place.
• “Fit and proper” - This is used extensively in the admission of legal practitioners and in corporate governance. “Fit” relates to competence and capability. “Proper” relates to integrity and good character. Both requirements must usually be satisfied independently.
• “Heirs and assigns” - “Heirs” are those who receive property of a deceased person through the law of succession. “Assigns” are those to whom property has been transferred during the owner’s lifetime. The phrase captures different modes of transmission.
• “Right, title and interest” - “Right” refers to the legal entitlement; “title” to formal ownership; and “interest” to any equitable or beneficial stake. The full phrase covers every legal and equitable dimension of ownership.

The modern drafter should neither abandon doublets, triplets or traditional wording completely, nor be totally resistant to change. Instead, drafting should be deliberate, distinguishing the genuinely meaningful from words used out of habit. Drafters must have the courage, where a phrase adds nothing but syllables, to let it go.