Let’s get something straight to start with – I’ve reached that age where I’m turning into a grumpy old bat. I appreciate good manners, hate mobile ‘phones (why is it that the people who feel the need to use them outside are usually so loud you feel the ‘phone is superfluous…we can all hear you anyway?!) and caused my better half to erupt into hysterical laughter when I watched a video of Woodstock (slightly before my time, but only slightly…) and remarked, with surprise, that Jimmy Hendrix looked ‘very nicely turned out’ (well he did..but maybe it wasn’t the hippest comment I could have made).
It’s probably not much of a surprise, therefore, that I appreciate precision in language. If you tell me that something will take ‘a couple of hours’ I expect it will be done in, well, 2 hours…not 3, not 6, but 2. (I make an honourable exception here in the case of my dearly beloved better half, who once famously estimated that it would take take ‘about a couple of hours’ to drive from Leeds to Inverness. In his case I learned, many years ago, to multiply all such estimates by at least 3… and it generally works out about right ).
But, back to my point…precision in language. It’s very important when studying law. I don’t think the age of the mobile ‘phone and the email helps here. I can’t even find a way to capitalize letters or use the apostrophe on the keypad of my uber-basic mobile (used solely for texting said better half with things like ‘please pick me up now and don’t forget to shut the windows’…you see, I need that apostrophe!) I am convinced that the lack of precision inherent in such types of communication probably gives rise to leads to a more careless use of langugage and, when you are dealing with specific legal terms, that can easily risk the examiner thinking that you don’t know what you are talking about.
Let’s take a few examples. In Criminal law, you need to be very careful in using terms like ‘recklessness’ and ‘intention’ because these relate to specific, clearly defined, states of mens rea. It can be very tempting to look at the facts given in a scenario and describe someone’s behaviour as ‘reckless’, meant in the usual sense, but this could be very misleading if the mens rea you need to prove is intention, and the crime is one that cannot be committed recklessly. It is safest here to save these terms and use them only when you mean to use them in the technical, legal sense.
Let’s look at Contract law. It can be the most natural thing in the world to say that ‘A offers B his car’, for example, but – before you say this – consider whether it is really a proper, legally binding offer? Is it firm and definite? If not, then it might be what you or I would casually refer to as ‘an offer’, but it’s not a legally binding offer, if you see what I mean.
This problem of precision really comes into its own when you get onto my favourite, good old Land law. There are so many things to beware of here. For example, you might want to express the fact that someone is aware of someone else’s claimed right of way across their land and you may be tempted to say ‘A has notice of B’s right of way’. Take care! Mention of the word notice strongly suggests the doctrine of notice and the doctrine of notice has no place in registered land (it won’t apply to easements in unregistered land either, unless they happen to be equitable and came into being prior to 1st Jan 1926 or arose by estoppel). The matter is not really helped by LRA 2002 having introduced concepts that are eerily similar to notice in relation to some interests that override. These concepts are very similar to notice (although the ‘good faith’ element is lacking), but they are not notice so, in my opinion, safest to use words like ‘knowledge’, ‘awareness’, ‘enquiry’, ‘discovery’ here, just so the examiner does not think you are confused.
A further potential confusion arises in relation to ‘The Register’ (in registered land) and ‘The Land Charges Register’ (in unregistered land). Let’s face it, it’s a bit of a pain to have to carefully write out ‘register the interest as a land charge on the Land Charges Register’ when you are discussing the protection of equitable interests in unregistered land but, fail to do so and you might end up with ‘register as a charge on the Charges Register’ and, guess what, that sounds suspiciously like the requirement for registered land… and the old bat who is marking your paper, after an 8 hour journey to Inverness, having been told would only take 2, will probably take quite a dim view of it!
I know. It’s picky, picky, picky…but being precise with language is a very good habit to get into. After all, you don’t want to lose exam marks because the examiner thinks you don’t know what you are talking about…especially if you do!