Equipment Leases In Plain English!

Transcription

1 Equipment Leases In Plain English! By A.J. Grant Words are signs they always point to something else and we all prefer signs that are clear, concise, and coherent that is, if we are truly seeking to communicate. The white letters S-T-O-P placed in the center of a red hexagon comprise a clear sign, because they refer unambiguously to an action required by law. The message is concise one word. And it is coherent its meaning is connected to a whole web of meaning conveyed in other road signs, including Yield, Merge, and Slow Down. As a matter of course, I teach the three Cs of good business writing clarity, conciseness, and coherence to all my students. The premise of this article is that leases, like all other business documents, should be clear, concise, and coherent for all parties affected by the lease, which means that where possible, Plain English is preferable, and by Plain English I mean the Standard Written English (SWE) of the 21st century. 1 One of the most commonly heard complaints about equipment leasing is that the documentation is difficult to understand. The editorial review board thought it might be instructional and amusing to ask a professor of English to review some familiar lease language and give us his thoughts. We hope that the article raises more eyebrows than hackles among the legal community and, at the same time, serves as food for thought for those who work with lease documentation. What is the value-added here for the busy professional? Greater clarity in writing means that the information in a lease makes more sense to the nonprofessional, lay reader of a lease. More concise writing means fewer words, shorter documents, and less time reading. Increased coherence means that the whole document hangs together better, at least for the nonprofessional lay reader. But there could be other savings as well. Time might be saved, because not only does the nonprofessional lay reader of the lease spend less time reading a lease, but you as an expert could spend less time translating and interpreting the lease into plain English. And if time is money, then you may be saving dollars and cents as well.

2 In English, one can always say the same thing in a number of different ways and ought, therefore, to choose the style that is most understandable to the primary audience who will be reading and acting upon the document. Of course, the author is neither a lawyer nor an equipment leasing professional. The observations that follow should be read as suggestions, some of them tongue in cheek and some (I hope) thought-provoking. I am not implying here that the archaic language of many leases is ambiguous, far from it. For the lawyer or leasing expert steeped in the language of the law, nothing could be clearer, in the same sense that F = MA makes perfect sense to the physicist, but needs to be translated for the nonphysicist. What I am addressing in this article is the tension between a desire to be precise, in terms of legal language, and the desire to make the lease clear to the lessee. Where possible, I am arguing, leases ought to avoid the King s English, 17th century archaic language, in favor of SWE. In what follows I read and think through some of the major provisions of a generic master lease from the perspective of a writing teacher who teaches students that audience drives style and that style is a matter of choice. In English, one can always say the same thing in a number of different ways and ought, therefore, to choose the style that is most understandable to the primary audience who will be reading and acting upon the document. This approach has been called reader-centered prose in writing circles, and I assumed this approach as I read through the leases that is, I assumed that I was the lessee and would be bound by the conditions of the lease and therefore had a strong interest in understanding the terms of the lease. LEASE HEADING AND INTRODUCTION Most of the leases I reviewed were titled Master Lease and began with an introductory paragraph, which included the names of the lessor and lessee, the date of the agreement, and some general statement about agreeing to the contents of the lease that followed. For example, a lease opening might look like this: MASTER LEASE AGREEMENT MASTER LEASE AGREEMENT dated 12 January 2003 by and between Smith Inc. ( Lessor ) and A.J. Grant ( Lessee ). IN CONSIDERATION of the mutual agreements described below, the parties agree as follows (all capitalized terms are defined in Section 15.15): [41 words] The word master in the title is itself an archaism and also displays, in common usage, a gender bias and other unhappy connotations. 2 If there is a schedule attached to the lease, which is usually indicated in the first section of the lease, and if the terms of the schedule prevail over the lease itself, why not simply call this the main lease or basic lease? This language suggests that the lease is the foundation for the transaction, but that the schedule, which is more specific in nature, overrides the basic or main lease if there is a conflict. In the introductory paragraph, why not change the language of lessor and lessee to we and you? This change is useful for a number of reasons. First, even though I have a Ph.D. in English, I had trouble keeping straight the difference between lessee and lessor in the many leases I read, and found myself substituting the personal pronouns you and we as I read, in order to keep straight my responsibilities as lessee and the lessor s responsibilities. Second, use of the personal pronouns creates an immediacy and relevance for the document that is lost with the third person constructs lessor and lessee. In other words, the language of lessor and lessee allows me, as lessee, to stand outside of the transaction, but if I am you and you are we (sounds like Sgt. Peppers!) then I am semantically inside the transaction, and my personal responsibility is tantamount. The introductory paragraph could simply state that, for the sake of clarity, the lessor will be referred to as we (or us ) and the lessee as you throughout the document. The next phrase in our generic lease actually introduces the content of the lease and begins 2 4

3 with in consideration. If the lessee has been designated you, now one can simply write: You agree to the terms set forth below: Or, if it is desirable that the lease be viewed as a standalone item, as in the language of the original, then one could write: You agree with us that the terms of our agreement are set forth below in this lease. This rendering in SWE points up the fact that the original phrase is possibly redundant because mutual agreements described below means virtually the same thing as the parties agree as follows, the only difference being that the first is a noun phrase, which describes a static list, and the second is an independent verb clause, which describes an action. If both the action and the list must be described for the transaction, then the second rewrite is the better of the two. Further, what are agreements if they are not mutual? An agreement assumes mutuality of perspective on some issue. So a switch to SWE in the introductory section of this generic lease reads as follows: MAIN LEASE AGREEMENT MAIN LEASE AGREEMENT dated 12 January 2003 by and between Smith Inc. ( we ) and A.J. Grant ( you ). You agree to the terms set forth below (all capitalized terms are defined in Section 15.15): [36 words] Is this rewrite clearer? For me, the lay reader it is. Is it more concise? Yes, I ve gone from 41 to 36 words, a savings of 5 words. Is it more coherent? We will have to suspend judgment to see if the use of SWE makes all the sections of this generic lease hang together better for the lay reader. LEASE TERM The next section that tended to puzzle me in the leases I read (I didn t get very far, did I?) was the term section. The typical term section reads something like this: On the commencement date Lessee will be deemed to accept the equipment described hereunder, will be bound to its rental obligations for each item of Equipment and the term of the schedule will begin and continue through the Initial Term and thereafter until terminated by either party upon prior notice received during the Notice Period. No termination may be effective prior to the expiration of the Initial Term. (68 words) The initial prepositional phrase, On the commencement, brings to mind high school or college graduation and could be better rendered in SWE as On the start date. The will be deemed clause is particularly puzzling to me as a reader. I don t understand what deemed means in this context, but the use of the future modal auxiliary will be suggests that at the start of the lease, which is yet future, I will have certain obligations. My dictionary tells me that deem can mean to judge; consider; to have an opinion; to suppose, so I opt for suppose and rightly or wrongly interpret this phrase as meaning that I am supposed to accept the equipment at the time and in the manner described in the lease. Hereunder is archaic and can be changed to below. The next clause, beginning with will be bound and ending with the period, is confusing, because the subject changes in mid-sentence. I, the lessee, will be deemed... will be bound is clear, but then the subject switches to the term of the schedule. For this reason, in my rewrite below, I have broken the compoundcomplex sentence with four clauses into two sentences with two clauses each. I have also substituted you for lessee. The most difficult sentence in the lease term for me as a lay reader is the last sentence, and this could be one of the more important sentences in this section of the lease, at least for the lessee: No termination may be effective prior to the expiration of the Initial Term. I understand termination, but I am not clear on what may be effective means. In common usage, effective has a teleological sense to it, that is, an intended or desired effect. An effective speech, We will have to suspend judgment to see if the use of Standard Written English makes all the sections of this generic lease hang together better for the lay reader. 2 5

4 The first sentence is particularly long and difficult to follow because of the threefold object (lessor, assignee, and secured party), the numerous nouns beginning with claims followed by a list of more nouns naming types of disposition, and the verb clause beginning with arising. for example, is a speech that has an intended or desired effect on the audience. In this context, however, effective is used in an operative sense, that is, no termination of the lease may be brought about before the end of the initial term. For this reason, I have rewritten the sentence to read, You cannot end this lease before the end of the Initial Term. The section now reads as follows: On the start date you will accept the equipment described below and will be bound to each equipment item s rental obligations. Also, the term of the schedule will begin and continue through the Initial Term and beyond this time until we or you give notice according to the Notice Period requirements. You cannot end this lease before the end of the Initial Term. (63 words) So where are we in terms of clarity, conciseness, and coherence? Again, for me the lay reader, the terms of the lease are clearer. The translation is also more concise from 68 to 63 words another 5-word savings. And the document is becoming more coherent for me in the sense that the Plain English rendering allows me to move more readily from section to section, keeping clear in my mind the responsibilities of the lessor and me, the lessee. LEASE INDEMNITY The indemnity section of the leases puzzled me immediately, because, I am ashamed to admit, I do not know the noun indemnity or the verb indemnify. Apart from legal usage, the words have pretty much disappeared from SWE and common spoken English. My desktop dictionary defines indemnity as 1. Security against damage, loss or injury 2. A legal exemption from liability for damages [or] 3. Compensation for damage, loss, or injury suffered. Indemnify is, of course, the verb form signifying protect against damage, loss, or injury. A typical indemnity section of a lease might read as follows: Indemnity Lessee will indemnify and hold Lessor, any Assignee and any Secured Party harmless from and against any and all claims, costs, expenses, damages and liabilities, including reasonable attorney s fees, arising out of the ownership, selection, possession, leasing, operation, control, use, maintenance, delivery, return or other disposition of Equipment. However, Lessee is not responsible to a party indemnified hereunder for any claims, costs, expenses, damages and liabilities occasioned by the negligent acts of such indemnified party. Lessee agrees to carry bodily injury and property damage liability insurance during the term of the Master Lease in amounts and against risks customarily insured against by the Lessee on equipment owned by it. Any amounts received by Lessor under that insurance will be credited against Lessee s obligations under this section. (126 words) The first sentence is particularly long and difficult to follow because of the threefold object (lessor, assignee, and secured party), the numerous nouns beginning with claims followed by a list of more nouns naming types of disposition, and the verb clause beginning with arising. Put this together with the lessee indemnifying the lessor and, quite frankly, I m lost. Moreover, in the 17th century, harmless could have the active sense of blameless or not responsible, but general, contemporary usage of the term suggests meanings of impotence, for example, The dog was harmless. If indemnity is a legal protection from damage, loss, or injury, then in common usage, the lessee is protecting the lessor from legal and other claims. Thus, I translate the first sentence as follows: You will protect us and anyone else from any and all claims, costs, expenses, damages and liabilities, including reasonable attorney s fees, arising out of the ownership, selection, possession, leasing, operation, control, use, maintenance, delivery, return or other disposition of Equipment. The next sentence basically says that the lessee 2 6

5 is not responsible for damage done to the equipment because of the negligent actions of the lessor or anyone else appointed by the lessor for the execution of the lease. But the language is problematic for me at this point, especially the antecedent referent for a party indemnified hereunder. If I retrace my steps to the top of the paragraph I can connect this phrase with the Lessor, any assignee and any Secured Party, but I really have to work, and if I am unclear about the meaning of indemnity and indemnify, now I m really lost. Also, the verb occasioned is archaic. My dictionary lists the first nine uses of occasion as nouns. The 10th use is that of the verb, which can be better rendered cause. For these reasons, I have rewritten the sentence as follows: However, you are not responsible to us or anyone else for any claims, costs, expenses, damages and liabilities caused by our negligence or the negligence of anyone designated by us. The remainder of the indemnity section, which treats questions of insurance, seems clear, except for the phrase owned by it. I presume that the antecedent referent is the lessee, understood as an entity and therefore described as it. In my reworking of these two sentences I once again use the personal pronoun you to make clear the responsibility of the lessee: You agree to carry bodily injury and property damage liability insurance during the term of the Main Lease in amounts and against risks customarily insured against by you on your equipment. Any amounts received by us under that insurance will be credited to your account under this section. The whole indemnity section now reads as follows: Our Protection You will protect us and anyone else from any and all claims, costs, expenses, damages and liabilities, including reasonable attorney s fees, arising out of the ownership, selection, possession, leasing, operation, control, use, maintenance, delivery, return or other disposition of Equipment. However, you are not responsible to us or anyone else for any claims, costs, expenses, damages and liabilities caused by our negligence or the negligence of anyone else. You agree to carry bodily injury and property damage liability insurance during the term of the Main Lease in amounts and against risks customarily insured against by you on your equipment. Any amounts received by us under that insurance will be credited to your account under this section. (118 words) Let s run our three tests on this rewritten section of the lease. Is it clearer? You be the judge. For me, the lay reader of leases, it is clearer, because archaic words that might trip me up have been removed and replaced with words I know. Is it more concise? Yes. I ve lowered the word count by 8 from 126 to 118 words, so on the overall document I m now 14 words shorter than the original. Is the document more coherent? Let s suspend judgment until we look at one more section of the generic lease. DEFAULT, REMEDIES, AND MITIGATION The default sections of the leases seemed clear enough to me and the word default still has as its first meaning, in my dictionary, a failure to perform a task or fulfill an obligation. I think most people are exposed to this sense of the word from the moment they sign forms for their college student loans and are warned of the dire consequences of defaulting on the loans. But since not all people go to college, and since the word failure occurs throughout most default sections, perhaps the section could be entitled Failure to Perform or, perhaps Nonperformance, which alerts the lessee to its need to perform certain obligations. Most of the default sections simply listed conditions under which a default could occur, then moved on to the remedies and mitigation sections of the lease. The word remedy is still used frequently in law, but outside of the courts, the word generally has the sense of some sort of physical relief: [s]omething, such as medicine or therapy, that relieves pain, cures disease, or Most of the default sections simply listed conditions under which a default could occur, then moved on to the remedies and mitigation sections of the lease. 2 7

6 Even with this court experience, I understood aggravation rather generally as everything that worked against the defendant and mitigation as everything the defendant had going for himself or herself. corrects a disorder. The legal definition is listed third; A legal means of preventing or correcting a wrong or enforcing a right. One could, perhaps, better render remedies as consequences since the remedies sections of the leases I read generally treated the consequences of default for the lessee. The word mitigation will probably create problems for quite a number of lay readers, unless they watch a lot of law shows on TV, and watch them closely. I know the term from five years of work in the criminal courts through the phrases factors of aggravation and factors of mitigation, spoken frequently during hearings and between attorneys in plea bargaining. Even with this court experience, I understood aggravation rather generally as everything that worked against the defendant and mitigation as everything the defendant had going for himself or herself. My dictionary defines mitigation as To make or become less severe or intense; moderate. I understand moderate to mean to reduce or to minimize, and in leases mitigation seems to have something to do with the lessor s right to moderate or minimize its damages if a default occurs. Sadly, I confess, when I started reading these leases, based on my limited experience in the criminal courts, I thought mitigation dealt with the lessee s side of things, in the sense that if the lessee defaults (default section) these are the consequences (remedies section), but the lessor is not going to lean on the lessee too hard (mitigation section). In essence, though, the lessor is protecting itself from financial and other losses. How about Our Rights as the title for a mitigation section? The three sections together might then read Nonperformance, Consequences, and Our Rights. As noted above, for me, the lay reader of these leases, the default and remedies sections of leases seemed pretty straightforward, apart from the actual titles of the sections. The mitigation sections, however, were a bit more confusing, largely, I suspect because of my rather fuzzy understanding of the legal term mitigation.a typical mitigation section might read as follows: Mitigation Upon return of the Equipment pursuant to the terms of Section 18.2, Lessor will use its best efforts in accordance with its normal business procedures (and without obligation to give any priority to such Equipment) to mitigate Lessor s damages as described below. EXCEPT AS SET FORTH IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY ANY OF THE LESSOR S RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, lease or otherwise dispose of all or any part of the Equipment at a public or private sale for cash or credit with the privilege of purchasing the Equipment. The proceeds from any sale, lease or other disposition of the Equipment are defined as either: a) if sold or otherwise disposed of, the cash proceeds less the Fair Market Value of the Equipment at the expiration of the Initial Term less the Default Costs; or b) if leased, the present value (discounted at three points over the prime rate as referenced in the wall Street Journal at the time of the mitigation) of the rentals for a term not to exceed the Initial Term, less the Default Costs. Any proceeds will be applied against liquidated damages and any other sums due to Lessor from the Lessee. However, Lessee is liable to the Lessor for, and Lessor may recover, the amount by which the proceeds are less than the liquidated damages and other sums due to Lessor from Lessee. (253 words) In my rewrite of this section, I have once again translated a number of archaic words into SWE. Pursuant to I changed to according to ; hereby to today ; use its best efforts to try to the best of our ability ; conferred to provided ; now and hereafter to today and afterwards ; and herein to in this lease. I have deleted remedies because the remedies are the rights of 2 8

7 the lessor outlined in the remedies (or consequences) section. More importantly. I have translated the verb mitigate with minimize and the noun mitigation with your failure to fulfill the lease. I have also substituted the personal pronouns once again for lessor and lessee. Our Rights When you return the Equipment according to the terms of Section 18.2, we will try to the best of our ability though normal business procedures (and without obligation to give any priority to such Equipment) to minimize our damages as described below. EXCEPT AS SET FORTH IN THIS SECTION, YOU NOW WAIVE ANY RIGHTS TODAY AND AFTER- WARDS PROVIDED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE US TO MINIMIZE OUR DAMAGES OR MODIFY ANY OF OUR RIGHTS SET FORTH IN THIS LEASE. We may sell, lease or otherwise dispose of all or any part of the Equipment at a public or private sale for cash or credit with the privilege of purchasing the Equipment. The proceeds from any sale, lease or other disposition of the Equipment are defined as either: a) if sold or otherwise disposed of, the cash proceeds less the Fair Market Value of the Equipment at the expiration of the Initial Term less the Default Costs; or b) if leased, the present value (discounted at three points over the prime rate as referenced in the wall Street Journal at the time of your failure to fulfill the lease) of the rentals for a term not to exceed the Initial Term, less the Default Costs. Any proceeds will be applied against liquidated damages and any other sums due us from you. However, you are liable to us for, and we may recover, the amount by which the proceeds are less than the liquidated damages and other sums due us from you. (254 words) Is this section more concise? I ve gained a word in my rewrite. Is it clearer? I as a lay reader understand more clearly what happens if I default. Is it more coherent? Whereas I was quite put off by the initial title of this section Default, Remedies, and Mitigation clearly not understanding the meaning of remedies and mitigation, I now understand the basic purport of the section, which is now titled Nonperformance, Consequences, and Our Rights. I know that if I do not perform certain obligations there will be severe consequences and I, the lessee, will shoulder the financial and material burden. Let s run the coherence test on all the sections of the rewritten lease, asking ourselves how well the whole lease hangs together. MAIN LEASE AGREEMENT MAIN LEASE AGREEMENT dated 12 January 2003 by and between Smith Inc. ( we ) and A.J. Grant ( you ). You agree to the terms set forth below (all capitalized terms are defined in Section 15.15): LEASE TERM On the start date you will accept the equipment described below and will be bound to each equipment item s rental obligations. Also, the term of the schedule will begin and continue through the Initial Term and beyond this time until we or you give notice according to the Notice Period requirements. You cannot end this lease before the end of the Initial Term. OUR PROTECTION You will protect us and anyone else from any and all claims, costs, expenses, damages and liabilities, including reasonable attorney s fees, arising out of the ownership, selection, possession, leasing, operation, control, use, maintenance, delivery, return or other disposition of Equipment. However, you are not responsible to us or anyone else for any claims, costs, expenses, damages and liabilities caused by our negligence or the negligence of anyone else. You agree to carry bodily injury and property damage liability insurance during the term of the Main Lease in amounts and against risks customarily insured I now understand the basic purport of the section: if I do not perform certain obligations there will be severe consequences and I, the lessee, will shoulder the financial and material burden. 2 9

8 These sentences should be more accessible to what some of us are calling the sound/sight bite generation that has trouble reading complicated arguments and lengthy prose writing. against by you on your equipment. Any amounts received by us under that insurance will be credited to your account under this section. OUR RIGHTS When you return the Equipment according to the terms of Section 18.2, we will try to the best of our ability though normal business procedures (and without obligation to give any priority to such Equipment) to minimize our damages as described below. EXCEPT AS SET FORTH IN THIS SECTION, YOU NOW WAIVE ANY RIGHTS TODAY AND AFTER- WARDS PROVIDED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE US TO MINIMIZE OUR DAMAGES OR MODIFY ANY OF OUR RIGHTS SET FORTH IN THIS LEASE. We may sell, lease or otherwise dispose of all or any part of the Equipment at a public or private sale for cash or credit with the privilege of purchasing the Equipment. The proceeds from any sale, lease or other disposition of the Equipment are defined as either: a) if sold or otherwise disposed of, the cash proceeds less the Fair Market Value of the Equipment at the expiration of the Initial Term less the Default Costs; or b) if leased, the present value (discounted at three points over the prime rate as referenced in the wall Street Journal at the time of your failure to fulfill the lease) of the rentals for a term not to exceed the Initial Term, less the Default Costs. Any proceeds will be applied against liquidated damages and any other sums due us from you. However, you are liable to us for, and we may recover, the amount by which the proceeds are less than the liquidated damages and other sums due us from you. I am, of course, biased, but the whole document seems more coherent to me, for a number of reasons. First, the use of the personal pronouns saves me from having to continually translate lessor and lessee in my head as I move through the lease. Second, in terms of syntax, the actual order of words in a sentence, I have taken a number of very long compoundcomplex sentences and cracked them apart into more manageable, shorter sentences. These sentences should be more accessible to what some of us are calling the sound/sight bite generation that has trouble reading complicated arguments and lengthy prose writing. Third, where possible I have removed archaic words and forms of the auxiliary verb to be so that the document is more accessible to a contemporary, lay reader. There clearly is a lot at stake in a lease for all parties involved. The lessor must be protected legally and financially from loss. Lawyers must insure that their leases are legally precise, reflecting the various laws that govern leases. And, finally, the lessee must understand the terms of the lease. In large-ticket and medium-market leases, writing leases in plain English might not matter much, since lawyers are representing all interested parties. But in the case of a small-ticket lease involving a drugstore owner, for example, who wants to rent a photocopy machine, the lease needs to cover the legal issues precisely and thoroughly, but it also needs to be written in a language that makes clear to the lessee the terms of the lease. When and where possible, at least from the perspective of a writing teacher, leases ought to avoid the King s English, 17th century archaic language, in favor of Standard Written English and contemporary usage. The author s biography may be found on page 56. Endnotes 1 By Standard Written English, the author means the commonly accepted standards of syntax, grammar, and mechanics described in typical English handbooks like the Blair, the Little, Brown, or the Longman Handbook. 2 The word master has been expunged from the vocabulary of the humanities, largely because of gender bias. For example, the big stories of a culture, like the American dream, were once called master narratives but are now called metanarratives. The word master has also been implicated in slavery (master/slave) and Nazi ideology (the master race). Perhaps it is time to retire it. 3 0