ODD LEGAL TERMS.

Roger Shuy at the Log has a post about the legal use of inure, which the OED defines as “To come into operation; to operate; to be operative; to take or have effect,” used in the context of something being for someone’s benefit:
1651 G. W. tr. Cowel’s Inst. 137 This Legacy shall inure not only to A. but to B. and his Heires also.
1879 PARKMAN La Salle 92 The results.. were to inure, not to the profit of the producers, but to the building of churches.
Shuy’s example is from the Montana Department of Revenue: “No part of the net income of a Montana tax-exempt organization can inure to the benefit of any private stockholder or individual.” As he points out, this is confusing to non-lawyers, since everybody else is familiar with it only in the context of getting used to something bad:
1781 COWPER Hope 7 The poor, inured to drudgery and distress.
Shuy says:

I challenged the use of inure in this letter, but the lawyers in the tax department strongly objected. I argued that these tax letters are replacing a word with one meaning that lay people know with a word that has another meaning known only to lawyers (probably) and accountants (possibly). But the lawyers informed me that inure is one of those magical words that is absolutely necessary for legal reasons.

The other usage that caught me by surprise recently is an odd use of the verb trespass. You might not think it’s a transitive verb, and if you accept that it could be used transitively you might think only laws and the like could be trespassed, but these days it’s said of people; the best explanation I’ve found is in Charles A. Sennewald’s Shoplifters Vs. Retailers (New Century Press, 2000):

Some stores will “trespass” a person caught shoplifting. … To be “trespassed” simply means the customer has become a “persona non grata,” a person not wanted.

I can’t say I care for it, but the English language doesn’t seek my approval before moving on. I’m not sure if this is used by lawyers or only by security personnel, and I also don’t know how far back it goes. It doesn’t seem to have reached the dictionaries yet.

Comments

  1. John Emerson says:

    I just came across the French word farouche which means fierce/timid. Sauvage also has those two meanings. It must be deep in French culture that untamed things are both timid and fierce. It makes sense, but it’s not idiomatic common sense in English.

  2. John Emerson says:

    I just came across the French word farouche which means fierce/timid. Sauvage also has those two meanings. It must be deep in French culture that untamed things are both timid and fierce. It makes sense, but it’s not idiomatic common sense in English.

  3. At the co-op I worked at back in Vermont a year plus ago, we referred to the practice of issuing notices of no-trespass to shoplifters as “trespassing” them, and it didn’t strike me as odd. They’d probably been referring to it as such for years, too.

  4. To be trespassed
    Where I worked some years ago, there was an announcement that the organization was overstaffed and that staff reduction would be accomplished by “attrition”. Then there was a rumor that some people might be “attrited”.

  5. SnowLeopard says:

    I’ve never heard of the use of “trespass” described here; whether or not other lawyers use it, it has no technical meaning as far as I can tell. As for archaic word choices, it seems like a lot of people never got the memo, but magic words have not been required in American jurisprudence for at least a century. Failure to mention a particular idea, meaning, or provision might have consequences, and vague or ambiguous language is always a problem, but magic words don’t cure that and no judge I’ve ever encountered would fault a lawyer or client for using plain and clear language to get their point across. In fact, there are plenty of situations (the Age Discrimination in Employment Act is one) where drafting is specifically required to be in plain language reasonably likely to be understood by the average recipient.

  6. Inure actually is one of those hocus pocus words that are, for a lawyer, the most precise alternative available. And that’s why they’re required. It’s not done from fear of jeofail. It’s not that the magic formula won’t work without it; it’s just that the word has a particular meaning that is not really matched by other words, or that other words convey some ambiguity or confusion that “inure” does not. Just like we don’t read that classic by Hawthorne entitled, The Bright-Red Letter. And since it’s been around since 1651, at least, people should have had a chance to get used to the legal meaning. At the best, it could be replaced by the word “benefit” but even “benefit” doesn’t have quite the reach of “inure”, which can cover situations where “to the advantage of” would be a more correct paraphrase. (Mr. Shuy’s proposed adverb is too restrictive, since it wouldn’t cover non financial benefits: if, for instance, the non profit’s income was spent on upgrading the stockholder from coach to business, or from the end zone to the fifty yard line–he would certainly benefit, but not in a way you could call “financial”.)

  7. Cherie Woodworth says:

    “Actionable” — I was told by a lawyer that “actionable” is used in the profession to mean “a deed which could be subject to legal action” (ie, breaking the law, or being liable for something).
    And yet I have heard “actionable” now used by business-speak types to describe the “action items” on their list — to put something on the list (assign sb to do it, assign a deadline) is to make a deed “actionable.”

  8. SnowLeopard says:

    Though I’ve seen it before, this use of inure isn’t even listed in the American Heritage Dictionary. I’d agree that Shuy’s paraphrase is incorrect, but “inure” isn’t pulling much, if any, weight in the sentence “No part of the net income of a Montana tax-exempt organization can inure to the benefit of any private stockholder or individual”, in the sense that you don’t need to know exactly what the word means to understand the prohibition. In fact, I hazard that the drafters weren’t comfortable with the word either, because the inclusion of “the benefit of” makes “inure” redundant. Alternate phrasings, such as “No private stockholder or individual may derive advantage from any part of the net income of a Montana tax-exempt organization” or “No part of the net income of a Montana tax-exempt organization may benefit any private stockholder or individual” would almost certainly have sufficed.

  9. magic words have not been required in American jurisprudence for at least a century.
    This is a point Bryan Garner emphasizes in his very readable and enlightening Garner on Language and Writing.
    since it’s been around since 1651, at least, people should have had a chance to get used to the legal meaning.
    Come now—”people” don’t go around reading legal briefs. Only lawyers have had a chance to get used to the legal meaning, and as in any specialized field, one of the functions of the specialized jargon is to keep the uninitiated from understanding. After all, if people thought the law was understandable, they might decide they could do without a lawyer!
    Alternate phrasings, such as “No private stockholder or individual may derive advantage from any part of the net income of a Montana tax-exempt organization” or “No part of the net income of a Montana tax-exempt organization may benefit any private stockholder or individual” would almost certainly have sufficed.
    See, this is the point: it’s not impossible to rephrase in a way that’s both accurate and comprehensible, it just takes a willingness to think the sentence through and not fall back on boilerplate language. Garner talks about this a lot.

  10. EVERY accountant (and every lawyer) who has ever worked on an exempt organization issue knows what “inures to the benefit of” means and where it comes from.
    (“Inure/s to the benefit of” has about 620,000 Google hits; and “inured to” (likely to be used in the sense of having gotten used to a bad thing) has about 1,010,000 hits. The “gotten used to” usage is not nearly as much more common than the legal usage as I would have guessed from the original post.)
    The word is an element of the definition of the description of organizations in subsection 501(c)(3) of the Internal Revenue Code, which may result in their being exempt from taxation:
    “Corporations … organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, … no part of the net earnings of which inures to the benefit of any private shareholder or individual, … .”
    The phrase “inures to the benefit of” has also presumably been tested in the courts and administrative bodies and has a specific meaning that has been honed over time. The meaning is accessible to a lawyer or accountant trying to give advice to a client about whether a particular activity will constitute an “inurement”. It is also accessible to an educated layperson. I think it is reasonable to expect that people involved in tax-exempt organizations will get advice from lawyers and accountants; this is not child’s play.
    Montana uses “inures” so that Montana and its documents and the organizations they govern match the federal usage. If Montana used a different phrase, it would cause time to be wasted by lawyers and others wondering if Montana’s standard differed from the federal standard (and with the feds or others responsible to them perhaps bouncing paperwork from Montana organizations not because “a magic word was missing” but because the new words MIGHT not be interpreted in PRECISELY the same way as the word they expected to see). Worse yet, there might be litigation on the question.
    By not using this phrase, you are imposing potentially significant costs on the parties to a transaction for very modest benefit.

  11. HWinVA:
    You come on mighty strong there (“EVERY accountant…”), but then, at the crucial moment, when a lay reader might expect you to distinguish this specialized version of “inure” from language that non-lawyers and non-accountants use every day, you begin presuming essentially that SERIOUS people (“this is not child’s play”) have “tested” this SERIOUS usage, so we can rest assured that it is necessary indeed. I remain doubtful.
    As for your point about consistency, sure, if true that would explain why the lawyers wouldn’t want to change it. But even if legalese has become so pervasive that it might be costly in some way not to use it in tax and legal documents doesn’t mean that we should pretend that it’s somehow super-duper meaningful.

  12. Yeah, I understand why they want to keep it, but the people who want to keep it don’t seem to understand or want to acknowledge that there’s a cost in doing so, and that reasonable people might think it worth making the tradeoff of shifting the ponderous machinery of legal usage for greater comprehensibility. And your Google results prove only that legal terminology shows up a lot online; I guarantee you that if you canvass a hundred people at random on the street, hardly any of them will be familiar with, or understand, the legal/accounting usage of “inure.”

  13. John Emerson says:

    In law, public comprehensibility is not a desideratum at all. One of the English historians, Maine or Maitland, wrote something somewhere about the advantages and disadvantages of having a fossilized Norman French legal vocabulary.

  14. John Emerson says:

    In law, public comprehensibility is not a desideratum at all. One of the English historians, Maine or Maitland, wrote something somewhere about the advantages and disadvantages of having a fossilized Norman French legal vocabulary.

  15. Daniel Sternbergh says:

    To John Emerson’s point, my understanding is that that is one of the essential elements of English law (as opposed to French, for example). The importance of precedence in case law results in a need to use terminology that makes the relevant precedent clear (so a reference to “as described in The Bright Red Letter” would be inadequate, to kishnevi’s point), whereas French legal documents, less concerned with references to historic case law and more concerned with being clear and understandable, are written in remarkably and refreshingly clear language. This also explains why English common law (both legislation and legal decisions) includes so many repetetive phrases with two, even three, synonyms in succession.

  16. John Emerson says:

    Stendahl used Napoleonic law as a style model when writing his novels. Brisk and to the point.
    Louisiana still uses Napoleonic law. Judging by the results, not a good idea.

  17. John Emerson says:

    Stendahl used Napoleonic law as a style model when writing his novels. Brisk and to the point.
    Louisiana still uses Napoleonic law. Judging by the results, not a good idea.

  18. The importance of precedence in case law results in a need to use terminology that makes the relevant precedent clear
    I’m curious to see this expanded. Copious quotes and references, yes. Jargon, I don’t know — I just don’t see how you get there. (Or at least why you need to.)

  19. rootlesscosmo says:

    When I was on the railroad there was a general belief that many of the rules in the Book of Rules (a standard code promulgated by the Association of American Railroads) were the traces of some long-ago screwup; you might not think they needed to be made explicit, but we know, since that jackpot in Tucumcari or wherever, you’d be wrong. By analogy, the apparent redundancy in legal phrases like “give, bequeath, devise, and convey” has been explained to me as the residue from the time somebody omitted “devise” and there were years of expensive litigation as a result. It’s Ambiguity Insurance.

  20. In Australia, recipients of social security assistance who fail to meet some requirement imposed by the relevant agency (Centrelink) are then “breached” for their breach, and have their benefits suspended, reduced, or withdrawn. The usage is widely understood, since Centrelink is notorious for being heartless and trigger-happy; but I suspect that very few Australians have noticed the added linguistic abomination.

  21. SnowLeopard says:

    Perhaps other attorneys would disagree (we’re good at that), but in my view, precedent alone never justifies the repetition of jargon. Sometimes words or phrases will acquire specific technical meanings and so be repeated for lack of a better way of saying something, but precedents are always compared and contrasted based on their underlying facts, not on the words used to describe them. And if you want to follow precedent, there is absolutely nothing to prevent you from simply saying so. An appropriate citation to that authority is far more effective than copying someone else’s words, because we then have to argue that documents with parallel language have parallel meaning. That doesn’t necessarily follow, especially if the drafters are different, and a court could actually rule either way on that question depending on appropriate factors. As for the claim that lawyers like to hide behind jargon, clients do not hire me for my skill with jargon or for any claims to esoteric knowledge, because I share such knowledge freely in periodic newsletters. They hire me for my judgment, my ability to get to the bottom of their problems, my ability to recommend solutions, and my persuasive abilities as an advocate. Effective representation requires constant client education as well as an ability to get your point across to judges, juries, bureaucrats, and businesspeople, and jargon does not accomplish that. As for “give, bequeath, devise, convey”, I don’t know what the difference is supposed to be between those terms. I won’t say I’ve never drafted a contract in my own field that didn’t have a few such redundancies, but I try to avoid it, because the totality and irrevocability of the transfer that the drafter is trying to impress upon the signatory is much better expressed with an explicit statement that the signatory acknowledges that the transfer is total and irrevocable. Types of provisions get included in legal documents as the result of past experience, but the specific language used to express them is repeated only out of convenience.

  22. On sets of synonyms, as noted by Daniel Sternbergh, a British firm called “Temple Translations” (http://www.templetranslations.com/templenews/wp-content/uploads/2007/11/issue-2-winter-2006.pdf ) has this to say:
    “In 1166 Henry II introduced trial by jury in his own ‘royal courts’, the Assizes. … The Assizes spoke French and were so popular that English was slowly forced out of the courtroom.
    “It’s from this linguistically complicated period that lawyers developed a predilection for synonyms: ‘cease and desist’, ‘will and testament’, ‘peace and quiet’, etc. These conjoins loop through each language in turn. So:
    ‘cease’ is Latin, ‘desist’ is French; ‘will’ is Old English, ‘testament’ is French; ‘peace’ is Latin, ‘quiet’ is French. Occasionally all three languages jostle together; ‘give, devise and bequeath’, (Eng,Fr,Lat); ‘rest, residue and remainder’, (Eng,Fr,Lat). Rather than simply being wordy, texts were crafted to ensure that everyone understood.”
    To jamessal, thank you for your criticism. I didn’t adequately support my point about the testing of the word, but can only say that I do believe it to be true, because there are so many cases dealing with the meanings of the key words in the tax code. (I didn’t mean to argue this one was super-duper meaningful, just meaningful in the legal or accounting contexts, which may have spilled over to other contexts.) I do think that all accountants involved in tax law would generally understand the meaning of the phrase in question. That is not to say that there is not room for misunderstanding or, more likely, for trying to see how close to the line you can get without crossing it. It hardly seems to matter to litigants how clear the word at issue is — there always seems to be something in the language to argue about.
    Finally, inure is a relatively uncommon word in either sense, is it not? I think that’s what the Google results showed. (Three the top 40 Google hits for “inured” were erroneous spellings of “injured”.)

  23. To jamessal, thank you for your criticism.
    Thank you for accepting it! I’d give more of a response, but it’s bedtime and tomorrow I’m out all day; I just wanted to at least acknowledge your comment.

  24. Quickly, as for “inure” and “inure” both being uncommon, I don’t think so at all: I wouldn’t hesitate to use “inure” in its to-become-accustomed-to sense with anyone who reads regularly; I hadn’t heard of the legal definition before today.

  25. Dixit LH: Come now—”people” don’t go around reading legal briefs. Only lawyers have had a chance to get used to the legal meaning, and as in any specialized field, one of the functions of the specialized jargon is to keep the uninitiated from understanding. After all, if people thought the law was understandable, they might decide they could do without a lawyer!
    ———
    Come now–here are some legal terms whose basic meaning, at least, “people” seem to know even if they’ve never read a legal brief in their life:
    negligence
    manslaughter
    slander
    easement
    bail
    ….
    More to the point, I would suspect those people to whom the reading of this sort of material would inure are in general already inured to such terminology.
    And this morning another word struck me to add to your list of out of place meanings;
    merchandise, which is used in retail not only to refer to the stuff a store sells, but to the act of putting that stuff on display and accessible to the custom in a manner that helps sell the stuff.

  26. John Emerson says:

    When I was in HS I went to a talented and gifted summer school thingy where we read the legal scholar Roscoe Pound. What I remember is a.) the case of The City of London v. One Bag of Nutmegs and b.) the terms fiduciary, nugatory, hortatory, and eleemosynary. Later on I learned the legal terms easement (just mentioned) and consortium. And in a veterinary book, I learned a new use of thrifty (= thriving but not overfed, I think) and the phrase “stockyard fever”, a disease characterized by an attitude of dejection diagnosed in animals penned up next to slaughterhouses.
    Please add “””” as needed. Use / reference, who cares.

  27. John Emerson says:

    When I was in HS I went to a talented and gifted summer school thingy where we read the legal scholar Roscoe Pound. What I remember is a.) the case of The City of London v. One Bag of Nutmegs and b.) the terms fiduciary, nugatory, hortatory, and eleemosynary. Later on I learned the legal terms easement (just mentioned) and consortium. And in a veterinary book, I learned a new use of thrifty (= thriving but not overfed, I think) and the phrase “stockyard fever”, a disease characterized by an attitude of dejection diagnosed in animals penned up next to slaughterhouses.
    Please add “””” as needed. Use / reference, who cares.

  28. You mentioned the bag of nutmegs before. I hope you can come up with a reference, because I’d love to be able to cite it.

  29. John Emerson says:

    This may be the case, but it’s unfortunately called “Day v. Savadge”.

  30. John Emerson says:

    This may be the case, but it’s unfortunately called “Day v. Savadge”.

  31. John Emerson says:

    More:Plucknett, note 5 Supra, 49; Hobart at 87a-87b. This case was in trespass for taking two bags of nutmegs for unpaid wharfage charges. Plaintiff contended that being a freeman of the City he was not liable for such charges. The court held that this case did not involve a general custom of London the existence of which by statute might be certified by the Mayor and Aldermen, but concerned only the corporate interest of the City; and that “it was against right and justice, and against natural equity to allow them their certificate, wherein they are to try and judge their own cause.”

  32. John Emerson says:

    More:Plucknett, note 5 Supra, 49; Hobart at 87a-87b. This case was in trespass for taking two bags of nutmegs for unpaid wharfage charges. Plaintiff contended that being a freeman of the City he was not liable for such charges. The court held that this case did not involve a general custom of London the existence of which by statute might be certified by the Mayor and Aldermen, but concerned only the corporate interest of the City; and that “it was against right and justice, and against natural equity to allow them their certificate, wherein they are to try and judge their own cause.”

  33. John Emerson says:

    Still more. But it’s still “Day v. Savadge”, alas.

  34. John Emerson says:

    Still more. But it’s still “Day v. Savadge”, alas.

  35. SnowLeopard says:

    You occasionally see property forfeiture cases with names like “United States v. Ten Million Dollars”, so City of London v. One Bag of Nutmegs isn’t out of the question.

  36. John Emerson says:

    I’ll continue to tell the story. One of these days I’ll look up Roscoe Pound’s book and see if I can find it. We read some other books too, but I can’t remember their names.

  37. John Emerson says:

    I’ll continue to tell the story. One of these days I’ll look up Roscoe Pound’s book and see if I can find it. We read some other books too, but I can’t remember their names.

  38. On “magic” words in the law: as I see it, there are at least two different sorts of magic words.
    One has to do with “pleading”, and I have an example about “trespass”, as long as it has been mentioned here. There were many, many sort of acts which may be (or might have been) called a “trespass”. (Think “Forgive us our trespasses …”.)
    [Side note: To see an amusing account of what modern computational techniques have done to the definition of the ancient action of "trespass vi et armis" (an action brought to recover damages for a certain type of trespass) see http://superelectric.blogspot.com/2004/10/trespass.html ]
    In old common law, the cause of action had to be stated with great precision. If you messed up the pleading, you might have to start again from the begining. These rules have largely been abandoned, mainly because the distinctions were not really important. (I’m now looking at an old case which turned on the question of whether it should have been pled as “trespass on the case” or “trespass vi et armis”. Taylor v. Rainbow, 12 Va. 423, 2 Hen. & M. 423 (1808). The “prior history” of the case, as given in a headnote, states: “In this case, the much agitated question whether trespass vi et armis, or trespass on the case, was the proper action, (between which the law says there is a nice distinction, but the reason of which it is often difficult to discover,) was the only point considered by the Court.” In wrapping up, the judge rendering the opinion of the court said: “This is undoubtedly a case of very great hardship, and I have felt every disposition to support, if possible, the verdict of the Jury; but the authorities are too strong and conclusive against this action, in its present form. I therefore think the judgment must be reversed, and judgment given that the plaintiff take nothing … .”)
    When SnowLeopard (above) said that “magic words” are no longer necessary in American law, I believe this was an allusion to the fact that court pleadings are now interpreted liberally.
    The old common law distinctions, turning on “magic words”, are a little different, it seems to me, from the question of whether we use a certain word in, say, an organizing document because it conveys a currently important, precise meaning in a legal context — even if the meaning is not easily available to the layperson.
    A lawyer might well say that “inure” is a “magic word” here, but the lawyer probably isn’t thinking about the “magic words” of pleading, which HAVE largely (and appropriately) been abandoned — but were for a time clung to even though the courts couldn’t quite make explain why they were needed. The lawyer is, rather, referring to a word that seems necessary to denote a specific technical meaning which IS important as a matter of substance.
    But perhaps, to a linguist, the distinction I am trying to make between these two sorts of “magic words” is not meaningful.

  39. No, I think it’s quite meaningful, and I thank you for your interesting and illuminating comment.

  40. John Emerson says:

    Hwinva might also be reassured that pedantry is quite welcome here, and I mean this straightforwardly. Pedantry R Us, aspirationally at least.

  41. John Emerson says:

    Hwinva might also be reassured that pedantry is quite welcome here, and I mean this straightforwardly. Pedantry R Us, aspirationally at least.

  42. Hwinva, I think you’re quite right. In Dorothy L. Sayers’s novel Unnatural Death, written more than a century after the forms of action were abolished in England, a barrister makes the point that while drafting your will he might ask “So you want to leave #300 to your aunt?” and you might reply “Oh yes, absolutely”; meaning nothing in particular by that; but if he then wrote “I leave #300 to my aunt absolutely“, that would have very definite legal effects.

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