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Did your studies in French get you as far as the subjunctive mood and all its weird variations (que je sois, que je fusse, que j’eusse été)?
Things are a little less complicated in English, but still not straightforward. This partly because the English subjunctive, while falling out of use (since the eighteenth century), isn’t dead yet – and was never consistently applied when more alive.
To refresh your memory, the subjunctive is the form of a verb that is used for an action or state that is conceived (but not actual), hypothetical or prospective; or for expressing a wish or command.
You may use the subjunctive without realising it:
- Go away!
- Convention be damned!
- Come what may
- Come the revolution …
- Be that as it may
- Far be it from me
- If I were you
- I wish I were there
- Would that it were true
There are times when you may need to think about it, though.
Not every if or though calls for the subjunctive. If I were you does, because I am not (and cannot) be you; but it’s If she eats [not eat] strawberries, she breaks out in hives because that’s a statement of fact.
The use (or non-use) of the subjunctive can change meaning. I insist that the contract is signed and I insist that the contract be signed mean different things: the first asserts that the contract has, in fact, been executed; the second, the strong desire that it should be signed. Fowler’s examples in Modern English Usage are more subtle: Though all care is exercised … (= in spite of the fact that care is exercised) as opposed to Though all care be exercised … (= even on the supposition that care has been exercised …).
There are also times when we could do without the subjunctive. It sounds antiquated beyond belief to say If it be no bother … or If I be incorrect about this …
The Economist recently took that view in the following headlines, which it decided would look ‘stilted’ (even if classically correct) with a subjunctive: If Donald Trump was president [no longer a hypothetical, that one], If the ocean was transparent. This prompted many letters from dismayed, subjunctive-loving readers: see ‘Would That It Were So Simple: The Strange Tale of the Subjunctive in English’ (Economist, 13 August 2016).
And then there is what is sometimes called the ‘American subjunctive’ (and the Yanks do seem to get into the subjunctive mood more than the Brits):
- It is moved that X be appointed secretary
- I suggested that he see a doctor
- We demanded that the other side disclose the contents of the file
- The associate insisted that she be admitted to the partnership
The meeting-minutes subjunctive is well-established, but in other constructions think about adding should (I suggested he should see a doctor) or using some other, less strained construction (We asked the other side to disclose; I insist that the other party is [or should be] present; The associate insisted on being admitted).
Next time: redundancy
–Neil Guthrie (@guthrieneil)
Received Law in Canada
Periodically the question arises: how does one determine which English acts are still in force in Canada?
The short answer is that there is no comprehensive list of what English statutes are still in force in Canadian jurisdictions. In J.E. Cote, “The reception of English law”, (1977) 15 Alberta Law Review, 29-92, the author lists a number of statutes and the provinces in which they were still in force in 1964. This list is based in part on Appendix C (pages 1060-1064) of W.H.P. Clement, The law of the Canadian constitution, 3d ed. (Toronto: Carswell, 1916) which listed a number of British statutes “the operation of which in the Colonies has been in question in the Courts”. However, Cote’s list was not exhaustive, and some of the acts have subsequently been repealed.
Some English statutes in force in Ontario were published in volume 3 of the Revised Statutes of Ontario 1897. This volume lists imperial constitutional acts, imperial statutes in Ontario ex proprio vigore, and a table of ”imperial statutes in force in Canada ex proprio vigore” as of 1901.
The Revised Statutes of British Columbia 1911, vol. IV contains a collection of English statutes, but “does not purport to be an exhaustive collection of English Acts that may be applicable in the Province of British Columbia.”
The British Columbia Courthouse Library’s “English Acts Applicable in BC” states that:
“The Law & Equity Act, R.S.B.C. 1996 chapter 253, sections 1 to 3, currently states that with the exception of section 28 of the Offences Against the Person Act, 1828 and all sections of the Real Property Act, 1845, the Civil and Criminal Laws of England as they existed on November 19, 1858 and insofar as they are not from local circumstances inapplicable, are in force in British Columbia, subject to change by BC law.”
If you are trying to determine if a specific statute is still in force for a given province, it is worthwhile checking the publications of that province’s law commission. For example, the Law Reform Commission of Saskatchewan’s Report on Disposal of English Statute Law in Saskatchewan (May 2006) lists English statutes that are still in force in Saskatchewan; this is the most extensive list produced by any of the provinces.
The status of a given statute may also be referred to in the case law, for example in McKenzie v. McKenzie, (1970) 11 D.L.R. (3d) 302, 73 W.W.R. 206 (BCCA) it was concluded that the Poor Relief Act, 1601, 43 Eliz., c. 2, as amended by the Poor Law Amendment Act, 1834 (U.K.), c. 76 was not a part of the laws of British Columbia. It is worth using the international volume of Carswell’s Canadian Statute Citations (or equivalent) to see if the English statute you are interested in has been considered in Canada.
— Susannah Tredwell
This is the grammatical term for the distinction between the singular and the plural.
Unsurprisingly, a singular noun takes a singular verb (takes being an example of that), while plural nouns take plural verbs (that was another example, in case you missed it).
Where there are two subjects in the sentence, the verb is generally plural (Diligence and enthusiasm are desirable in an articling student).
It’s easy to lose the plot, however, when the two components of a compound subject are separated by a lot of intervening material.
A case in point is a clause a lawyer recently asked me about. Which wording is correct?
- The division of this Agreement into articles and sections and the use of headings is for convenience of reference only and does not modify or affect the interpretation or construction of this Agreement or any of its provisions.
- The division of this Agreement into articles and sections and the use of headings are for convenience of reference only and do not modify or affect the interpretation or construction of this Agreement or any of its provisions.
It has to be version 2, because the subject of the sentence is The division … and the use – so the verbs should be are and do.
This is the general rule, but there are times when the two elements of a compound subject are inextricable, and therefore demand a singular verb: Scotch and soda is her favourite drink; gin and tonic is mine. Or where they could be said to constitute a single concept: Violence and killing is against moral law (the subject of the sentence being, in effect, violent killing: Fowler’s example from Modern English Usage).
On that rationale, the boilerplate provision about consideration could be the receipt and sufficiency of which is hereby acknowledged — but one also sees are hereby acknowledged.
Don’t stretch things too far with compound subjects, though.
And where it’s X or Y rather than X and Y, the verb will accord with the nearest element (in this case, Y): Either the company or its directing minds are liable BUT Either the directing minds or the company is liable.
Another common pitfall is the one in [larger number] formulation, which often ends up in error. It isn’t One in ten doctors smoke but One in ten doctors smokes. (The subject of that sentence is One (singular) not doctors (plural).)
Next: the subjunctive
–Neil Guthrie (@guthrieneil)
Finding Federal Regulations
The federal Justice Department’s Consolidated Regulations are organized by regulation title. So how do you find all of the regulations passed under a given statute?
Well, there are a couple of ways, the simplest of which is to go to the act itself in the Consolidated Acts, and select the first letter of the title in the A-Z menu. The left-hand column lists all the acts beginning with that letter, along with their chapter number –
and the right-hand column has PDF links to the acts and little yellow “R” boxes. Any guesses what the R stands for?
Good guess! R is for Regulations. Clicking on the yellow box will take you directly to a complete list of the regulations made under that act. If you scroll up from the list, you will find the main Table of Contents for the act – so a second way to see the regulations would be to open the act directly and scroll down.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Confusing Pairs, Part 5
More in this series.
The first is a noun, most commonly used to mean ‘a person who depends on another for support or position’ (He is a single man with no dependants). Dependent is the adjectival form of the noun (Each dependent child will receive a payment …) Dependent also means, more generally, ‘contingent on or owing its existence to something else’ (Your success as an articling student is dependent on many factors, some of which may not be apparent to you).
In the US, dependant is almost never seen; Americans use dependent for both noun and adjective.
A guaranty is ‘the action or an act of securing, warranting, or guaranteeing’. It also means ‘security’ or ‘warranty’, and, more particularly in law, ‘a written undertaking made by a person … to be answerable for the payment of a debt or the performance of an obligation by another person’.
A guarantee is similar, but slightly different: ‘a person or party that makes a guaranty or gives a security; a guaranteeing party’; ‘something given or existing as security, e.g. for fulfilment of an engagement or conditions’; and ‘a person to whom a guaranty is given’.
Clearly there is some overlap, and you’ll never go wrong if you use guarantee for all senses. Guaranty is preferable where you mean ‘rather the act or fact of giving security than the security given or its giver’ (Fowler) – so, ‘a contract of guaranty‘.
Guaranty used to be the verb form; this is now always guarantee.
These used to be used more or less interchangeably, but have parted company.
Historical now means ‘belonging to, constituting, or of the nature of history; in accordance with history; treating of, based on, or depicting events from history; based on an analysis of development over a period of time’. For example, Your memo doesn’t need to provide a historical account of the law of unjust enrichment since Moses v Macferlan (1760); just give me an overview of the current state of Canadian law.’
Historic is now confined to the sense of ‘memorable’ or ‘worthy of a place in history’: On that historic day, the Dominion of Canada came into being.
One often sees an before these two adjectives (‘an historic occasion’), but this is unnecessary. The general rule is that you use an only before a word beginning with a silent H (so it is an honour, but a house). In front of historic, an is a hold-over from the days when an was usual before any word with an unaccented syllable beginning with H.
The first is a gland that men have (Prostate cancer can be treated effectively if detected early).
The second means ‘to throw oneself to the ground in reverence or submission’, ‘to knock down’, ‘to overcome, to reduce to helplessness’, ‘to reduce to extreme physical weakness or exhaustion’. As in That combination of intense heat and humidity will prostrate those who attempt overly vigorous physical activity.
Prostrate is occasionally used for the gland, but this is ‘non-standard’ (which is to say, wrong).
Wares (usually used only in the plural) are articles of merchandise or manufacture: Local hippies displayed their hideous wares in the market on the music festival grounds. Ware in the singular is less common, except where a descriptive word is tacked on: earthenware, glassware, hardware, silverware, software, tableware.
Wear, as a noun, can mean ‘what one wears or should wear’, as in men’s wear (often now compressed to menswear, not entirely properly). Outerwear and underwear are well-established, but there are less attractive coinages: beachwear, eyewear (can we not just say (eye)glasses or specs?), innerwear (used for underwear, but illogically; you don’t wear this stuff inside you, you wear it under other garments), knitwear (how about woollens?), nightwear, sleepwear, swimwear (OK, your humble scribe can’t think of better one-word terms for the last three, but they’re still icky).
Next time: number
–Neil Guthrie (@guthrieneil)
Noting Up US Case Law in Canada
It is straightforward to find out out how a Canadian case has been subsequently treated by Canadian courts; all you need to do is note it up on Quicklaw, WestlawNext Canada, or CanLII. However sometimes you need to find out if a US case has been mentioned in the Canadian case law and this is slightly more challenging to do.
The easiest way to note up a US case in the Canadian case law is by a Boolean search for the names of the parties and any citations for that case. For example, if you were trying to find out what Canadian cases had referred to Hiscott v. General Electric Co. (1975), 521 F. 2d 632, you might use the search string (Hiscott /4 General) OR “521 F. 2d 632”.
Depending on how common the names of the parties are, you may have to make the names used in your Boolean search more specific.
— Susannah Tredwell
Some Contractual Terms
I generally stay away from drafting issues, but thought I’d mix things up a bit.
Depositary and depository
Depositary in US contracts has always seemed wrong to me. Shouldn’t it be depository?
No, in fact. The two words, while ‘often confounded’ (as the Oxford English Dictionary Online puts it), mean different things.
A depositary is ‘a person [natural or otherwise] with whom anything is lodged in trust; a trustee; one to whom anything (material or immaterial) is committed or confided; …a bailee of personal property, to be kept by him for the bailor without recompense.’
A depository, on the other hand, is ‘a place or receptacle in which things are deposited or placed for safe keeping; a storehouse, a repository’.
So a depositary must be a person (including an artificial one at law) who holds onto things for you, while a depository must be a place or thing where or in which you put things.
I take some comfort, however, from the knowledge that depository used to be used of people too (but not since about 1878).
Indemnitor and indemnitee
Please, no. These are recent American coinages, and not attractive ones. Just say indemnifier and indemnified (or indemnified party).
There is no need for the faux neo-Latin and the clunky –ee back-formation.
It could be worse, however: the Oxford lists indemnificator – but says it’s ‘rare’ (only one example of usage, from 1827).
Whereas and witnesseth
I agree with Ross Guberman (Deal Struck: The World’s Best Drafting Tips (2014)) that these terms in contractual recitals are ‘substantively harmless’, but unless you’re drafting on parchment with a goose-quill, don’t use ’em.
Next week: confusing pairs, part 5
–Neil Guthrie (@guthrieneil)
Law Reviews, Journals, and Newsletters on CanLII
Over the past few months, CanLII has been rapidly growing its collection of secondary sources, which now includes law reviews, journals, and newsletters. For more information on what’s available, see the Law Society of Saskatchewan’s recent posts:
Hat tip to the Legal Sourcery Blog for keeping tabs on these developments!
Oh, With the Verbing!
Professor Frink says this on The Simpsons, but don’t you do it.
In simple terms, a verb is an action word. Sometimes there doesn’t seem to be a good verb available to express a particular action, so it may make sense to adapt a noun or some other word.
This is often fine, but often not. Herewith, some of the pitfalls.
Noun as verb
In The Sweet Smell of Success, the 1957 film noir classic, Burt Lancaster’s character holds up an unlit cigarette and says ‘Match me, Sidney!’ in a particularly venomous speech directed at Tony Curtis.
An effective and memorable phrase – but other examples of verbs made from nouns are less happy inventions.
We can do without all of the noun-verbs on the list that follows. Some may save you a word or two, but they add nothing useful and they are weaker than what they seek to replace.
action [how about act, take action, implement or just plain do?]
friend, unfriend [technical terms from Facebook, but confine them to that platform; in real life, befriend or make friends with people and then drop them]
impact [affect is preferable, but presumably people shy away from it because they get it confused with the verb to effect]
leverage [there is actually the perfectly good verb lever, generally confined to actually working with some kind of tool; we are now stuck with leveraged buy-outs, but try to avoid this verb-form otherwise]
medal [in the Olympic sense; please say win a medal]
message and text [OK, these are kind of useful, but I still don’t love them; I prefer to send a message]
plain-language [oh, the irony of using a piece of jargon to describe taking the jargon out!]
reference [awful! it’s refer to or mention]
repurpose [wouldn’t adapt or convert do?]
task [how about the more vivid charge, as in She was charged with compiling the closing books for the transaction – or you could just say she was asked to do this]
trend [in its modern sense of ‘becoming a trend; popular’, anyway; well-established to express ‘turn in a certain direction, bend; have a general tendency’]
trial [hideous marketing-speak]
Admittedly, verbs-from-nouns can have their uses: position is convenient shorthand for the unwieldy ‘to identify or establish (a product, service, or business) as belonging to a particular market sector, esp. for the purposes of promotion in relation to competitors; to promote (a product, service, or business) strategically or distinctively, esp. as fulfilling or exceeding the requirements of a targeted market sector’ (Oxford English Dictionary Online).
Just use such formations sparingly and thoughtfully.
For more on this subject, see this article: http://www.bbc.com/culture/story/20160825-why-medalling-and-summering-are-so-annoying.
Please don’t ever liaise with anyone. The noun is liaison, but it comes from the French verb lier (‘to link or connect’), not liaiser. Why don’t you just connect with, co-ordinate with or talk to someone, instead of trotting out this hybrid English-French mess?
Even worse is to incent someone. No! You might be OK to incentivise, but you’re better off to create incentives, motivate or encourage – anything but incenting, please.
The dreaded –ise/–ize
Another way to make a verb is to add –ise (–ize, if you prefer) to another word. As H.W. Fowler saith, ‘Within reason, it is a useful and unexceptionable device, but it is now being employed with a freedom beyond reason.’
No one would object to apologise, jeopardise or pasteurise; but the same cannot be said for incentivise, moisturise, pressurise (although this is usual in the UK), productise, randomise, slenderise, tenderise and volumise.
Next: some contractual terms
–Neil Guthrie (@guthrieneil)
Coming Into Force of Statute Revisions
One of the (many) confusing things about historical legislative research is the fact that revised statutes don’t necessarily come into force in the year of their citation. For example R.S.C. 1985, which consolidates the text of the statutes in force on December 31, 1984, came into force almost four years later on December 12, 1988. Any changes made after December 31, 1984 to Canadian statutes were published in the supplements to R.S.C. 1985.
Courthouse Libraries BC has put together a list of the in force dates for the revised statutes of the following jurisdictions:
R.S.A. 2000, which is not listed in the Courthouse Libraries BC’s Knowledge Base, came into force on January 1, 2002.
— Susannah Tredwell