Legal Language and Business Communication

Anurag K. Agarwal

Legal Language
and Business
Communication
Anurag K. Agarwal
Indian Institute of Management
Ahmedabad, India

ISBN 978-981-13-7533-0    ISBN 978-981-13-7534-7 (eBook)

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The original version of the book was revised: Preface, Dedication and
About the Author section have been included. The correction to the book
is available at [Link]
Manjari, my wife

vii
 Preface

This book is the result of numerous discussions related to law and litera-
ture I had with my wife, Manjari, since our marriage about two decades
ago. She, as a teacher of English literature and language, and I, as a lawyer
and later as a business law teacher, found several overlapping and common
topics to talk about while going through the morning newspaper. Usually
we started with sharing our views on certain current issues, which very
often meandered to a definite rift in the form of strong difference of
opinions. Sometimes we were able to find common ground, and on several
occasions we ended our debate with the mature bottom line, “we agree to
disagree.” Besides the rich conversation, the most important aspect in all
these debates and discussions had been the court judgments—Indian,
foreign, Supreme Court, lower courts, tribunals, landmark cases, stray
cases and so on—I had cited to support my views, and copious references
to English literature—prose, poetry, classics, contemporary, British,
American, Indian and the like—made by her to vindicate her stand. Most
of them got etched in my mind as most of the literary references were
new to me.
Our mutual interest somehow wandered towards “business communica-
tion” due to my daily dose of business news—law and strategy—and her
interest in the issues related to the language, both spoken and written.
Frequently, we were expressing our opinions on the problems faced by
businesses due to poor communication skills, or not paying due attention
to legal issues, or both. We realised that the legal language is surely differ-
ent from what is typically used for business communication, and that

ix
x  Preface

drove us to this work. She has been instrumental in the design of the
book, preparation of the outline, chapter formation and sequencing, and
most importantly providing invaluable literary inputs. The analysis of the
use of language and different aspects of business communication has been
dealt by her expertly. This work has benefitted immensely from her contri-
bution. She has just been a step away from being the co-author of the
book. This book is truly and rightfully dedicated to her.
This book is an amalgam of legal language and business communica-
tion. While communicating, a business leader has to take care of the
legal periphery which she should never transgress. However, legal lan-
guage in itself can be so complex and difficult that it is many a time
unclear as to what the meaning can be ascribed to different words and
phrases used. Also, it is easier to say that there is a boundary of law, but
such a limit is not easily perceivable to the uninitiated. Occasionally
even experts flounder. I do not claim to be an expert of both the fields—
legal language and business communication—but with effective and
pointed ideas from Manjari, I have tried to bring the best of both
domains for the benefit of readers. It is surely going to be of interest to
students of business and law, managers, lawyers, researchers, practitio-
ners and readers in general.
The cases and related issues have been culled after rigorous research.
Legal language and business communication as separate subjects have
been studied for long; however, studying the interplay of the two has
been, in all probability, not been done so far. I have tried my best to do
deep research in the inter-related topics and devoted substantial time and
effort in picking up highly relevant topical themes. It has not been an easy
journey for me to research on these themes, which usually are very new
and yet to be settled. Business practices are greatly being influenced by
new developments in the fields of communication, making research in this
domain extremely time sensitive and facing the risk of obsolescence too
fast. Legal language, though well-established over centuries, is being
continuously challenged by new dimensions of business communication in
the last decade or so in a manner never experienced before. The very
survival of the traditional model is being questioned. Research using pure
legal databases has not been of much use as typical blending with business
communication is usually absent. Also, researching pure business
communication academic journals and other writings was not of much
help as they did not characteristically deal with legal language and its
  Preface  xi

implications. Hence, a mixed approach of researching—trial and error,

random selection, picking up disparate pieces and so on—eventually
bore fruit.
The book is not intimidating. It steers through legal jargon and legalese,
and also the highly technical issues of grammar and linguistics. It has
various case studies and current examples. Though dealing with legal
language, it is in lucid language, devoid of heavy legal language as far as
possible, and is interesting to read. Primarily, the book focuses on business
and leadership cases; however, I have briefly discussed the relevant text on
different topics covered in the book. It, hopefully, will connect well and
touch upon—if not answer all—a lot many issues, concerns and queries,
which often trouble a business leader. I envisage the book to be a useful
companion to the business leaders.
The Introduction of the book is woven around a fantastic story Namak
Ka Daroga (The Salt Inspector) written about a century ago by the master
Hindi storyteller Munshi Premchand. The thought of using this as the
initiating piece occurred to me while discussing another story Panch
Parmeshwar by the same writer with students studying intricacies of
business dispute resolution and arbitration. I have always been fascinated
by Premchand’s writings and his deep understanding of human behaviour
in different situations, especially the business and commercial aspects
intertwined with ordinary daily life of the most ordinary people. The
simplicity with which he has been able to communicate the most difficult
facets of human conduct in changed scenarios is unparalleled. Another
story which comes closest to this ease of explaining the most difficult legal
and business concepts can be Anton Chekhov’s The Chameleon, written in
1884. This is precisely what the basic theme of this book is: different
meanings ascribed to the same language and text depending on the
context, and thus the importance of interpretation.
I would like to thank Sagarika Ghosh of Springer and Palgrave for her
advice regarding the scope, content and relevance of the book for business
leaders and lawyers. She also helped me with valuable information and
comments on the initial outline and later during the preparation of the
manuscript in tweaking it occasionally. I would also like to thank Sandeep
Kaur of Springer and Palgrave in taking the idea forward and providing
necessary support and guidance in the publication of this work.
I would like to thank my sons—Anant and Akshat—who have not been
demanding in terms of time and attention. During family discussions, they
xii  Preface

have been helpful in providing their inputs and suggestions befitting their
age and understanding. Sometimes, their queries made me rethink a few
topics and also the manner of presenting them in the written form.
Hopefully more such reflections with Manjari will bear fruit in the form of
new and stimulating academic output.

Ahmedabad, India Anurag K. Agarwal

October 29, 2018
 Contents

1 Loose Lips Sink Ships  1

2 What’s the Good Word? 29

3 Should a Business Leader Talk Like a Lawyer or a Judge? 59

4 It’s All Greek to Me 87

5 Read My Lips!117

6 Man Is a Social Animal145

7 Speech Is Silver, Silence Is Golden177

Correction to: Legal Language and Business CommunicationC1

xiii
 About the Author

Anurag K. Agarwal  A Harvard Law School graduate, he has been the first

recipient of the prestigious Marti Mannariah Gurunath Outstanding
Teacher Award at the Indian Institute of Management Ahmedabad (IIMA).
As faculty at IIMA, his teaching, consulting and research interests include
business leadership, negotiation, strategy and law, infrastructure and Public-
Private Partnerships (PPPs), contracts and arbitration, banking, intellectual
property, medico-legal issues in healthcare and related issues.
Graduated as mechanical engineer in 1990 from Motilal Nehru
Regional Engineering College, Allahabad—now known as Motilal Nehru
National Institute of Technology—he started his career with Bharat
Petroleum Corporation Limited, where he worked for less than a year.
Thereafter, he studied law at the Lucknow University, where he completed
Bachelor (LLB)—gold medallist at the college—Master (LLM)—gold
medallist at the University—and Doctor (LLD) of Laws. He went to the
Harvard Law School for a second LL.M.  He was a practising lawyer in
Lucknow and Delhi for nine years. He switched over to full-time teaching
in 2004, with a brief stint at Management Development Institute,
Gurgaon, and joined IIMA in October 2004.
He conducts classes for several executive education programmes for
government, public sector and private sector companies. He is a visiting
faculty at many educational institutions. He is also on the board of some
judicial, government and educational bodies.

xv
xvi  About the Author

He has authored four books: Business Law for Managers: Kaleidoscopic

Tales (2018), Business Leadership and Law (2017), Contracts and Arbitration
for Managers (2016) and Business and Intellectual Property (2010). He
writes a weekly column “Lawfully Yours,” for DNA Ahmedabad.
 Introduction

The story of salt in Indian freedom movement has been of immense

importance, and it was the Draconian British rule which legally imposed a
tax on salt and made it illegal to produce salt or sell it without a licence
granted by the British government in India. Salt is an essential commodity
and everyone needs it, whether poor or rich. It was precisely because of
this reason, the British made the availability of salt legally very difficult,
though it was widely and easily available in India because of the very large
coastline. It was only in 1930 when Mahatma Gandhi—later known as the
“Father of the Nation”—started on a long walk, known as the Dandi
March, and wilfully broke the law by picking up salt from the seashore. He
and several others were arrested and that moment was one of the turning
points of the Indian freedom struggle, which one can say started in 1857
and culminated in 1947.
With this background it will be easy to understand that in 1925 one of
the finest Hindi writers, Munshi Premchand, wrote a story titled Namak
Ka Daroga (The Salt Inspector), depicting the dilemma faced by a Salt
Inspector and the allurements given by a very rich businessman of that
time. The story is all about fictional characters and events; however, as
literature is the reflection of what happens in the society, it can be a good
barometer of the happenings in the society at that time, particularly the
manner in which the successful business leaders used to communicate with
government officials, so that their illegal activities could continue unhin-
dered and technically speaking they remained on the right side of the law.
In brief, the story is like this.

xvii
xviii  Introduction

Banshidhar was a capable and honest young man. He was appointed as

the Salt Inspector. Once on duty at night, he saw several bullock carts
illegally carrying salt on the instructions of Alopidin, a very rich landlord
and businessman. Banshidhar did not allow the illegal movement of salt.
Alopidin offered him huge sums of money in bribe, but he did not relent
and got Alopidin arrested. When produced in the court, Alopidin man-
aged the entire legal proceedings and was released honourably. But, after
some time, Banshidhar was fired from his job, at the behest of Alopidin.
Banshidhar was devastated and so was his father. Later, one evening
Alopidin came to Banshidhar’s house and made him the offer to become
his manager at an extremely high salary and perquisites as he wanted a
dead honest person to take care of his estate and business, and he stated
that Banshidhar was the most suitable person for that position. Banshidhar
accepted the offer, and the story ended on a positive note.
This was the social, business and legal environment in the 1920s in India,
a time which was highly turbulent due to social inequality, drain of wealth
by the British and general unrest in the country. Honest and talented per-
sons were rare. The role of law in framing innocent people, or on the other
hand letting go of the real culprits, was widely seen as the easiest method of
controlling people by the British rulers. Communication, and business com-
munication, was either in vernacular or in the English language—local trad-
ers used the vernacular, however, when talking to the British officers the
English language was used, and this practice gave immense importance to
individuals who knew the languages well. Besides the advantage of knowing
two languages, the most important thing was to understand the mood of
the officers so as to communicate with them the intricacies of business in
such a manner that the work of the local traders got done, the officers felt
happy that they had done something good and were holding the moral high
ground, and in this entire process the middlemen got the illegal gratification
from the traders. All this was the heady mix of business and law bringing to
the fore the issues related to polite business communication blending it with
the proper legal language. The art was not only in spoken communication,
but had to be exhibited to a much higher level in writing.
Noteworthy issue regarding the first communication between Alopidin
and Banshidhar is the fact that Alopidin wanted to bribe Banshidhar and
the story dealt the interaction with great dexterity. At the outset Alopidin
threw his weight around and tried to impress upon Banshidhar his status
in business, government and social circles so as to browbeat him. But
being a seasoned businessman, Alopidin did not threaten Banshidhar,
  Introduction  xix

neither in the first meeting nor later on in the court. He casually offered a
big sum of money—increasing it incrementally in every offer which was
rejected one by one by Banshidhar—to the extent he might have decided
in his mind as the ultimate limit to which he could have gone. When it
didn’t work and Alopidin could gauge Banshidhar’s next move very
clearly—that arrest was imminent—he did not increase the offer further
and got himself arrested. One may analyse Alopidin’s conduct at that
moment as that of a person who has resigned to his fate, accepted his
arrest as predestined, and believes that nothing will change the future
course of action; however, there was the shrewd mind of a businessperson
working, doing cost-benefit analysis, and then taking the decision of going
with the flow at that moment, and later on taking his revenge by getting
Banshidhar fired from his job.
Alopidin, in this entire process, ostensibly remained suave and acted
like a thorough gentleman. But, his inner core was full of guilt and manip-
ulation. He had no remorse and did not appoint Banshidhar as his man-
ager so as to correct the wrong he had done but to take advantage of the
availability of a gem of a person like Banshidhar. The language he used
with Banshidhar in the second meeting, when he made the offer to him,
was extremely polite and made it possible for him to be using the courte-
ous language laced with the legal jargon of making an offer under the
contract law. At that time also he did not resort to any of the practices
mentioned in the contract law which could have made the agreement
between the two of them voidable or void. Alopidin had mastered the art
and science of finely blending the legal language in his business communi-
cation and had further perfected it to match the taste of the person with
whom he used to communicate.
Though it is not at all recommended to have evil designs and ill feelings
in business, yet the importance of being tactful while conducting business
communication, keeping in mind the legal contours within which one
must perambulate, can never be over emphasised. One must surely try to
conduct business by walking on the straight and narrow path; however,
legal language, if used heavily, can make business communication unwork-
able besides being dry and boring. One need not start cracking a joke
unnecessarily; still, there is merit in keeping the communication simple,
effective and legal, according to the law of the land. There is the possibility
of a business communication backfiring if too much of legality is mixed as
there is a tendency of thinking and talking more about one’s rights the
moment there is a mention of the legal provisions. The other party, as a
reflex action, usually becomes closed and suspicious at the sight of legalese.
xx  Introduction

As will be discussed in subsequent chapters, a business leader has to be

conscious of the value of effective business communication while being on
the right side of the law.
The book is divided into seven chapters, with each chapter dealing with
a different facet of the relationship between legal language and business
communication. Though the chapters can be read separately in any
sequence, there is a loose connection between them with certain thoughts
and ideas overflowing from one to another. Thus, the material is so placed
with emphasis on certain court judgments that reading and understanding
them is enjoyable and informative, without being too legalistic.
Chapter 1, “Loose Lips Sink Ships,” talks about leadership communi-
cation and how the business leaders should be discreet, while trying to
remain on the right side of the law. The focus of this chapter is on the
maturity a business leader must develop and exhibit in making decisions
and dealing with numerous individuals, in different capacities, while doing
business. He cannot afford to be rigid in behaviour and attitude, as rigidity
brings in obstinacy and the desire to put self at a higher pedestal than the
business one is supposed to manage and lead. Being a business leader, in
essence, means being flexible in approach and not to overstate according
to the demands of a specific situation. Garrulity is often self-hurting and
usually makes a person unconsciously slide into the grey area of law. A
business leader should truly avoid being loquacious.
Chapter 2, “What’s the Good Word?,” highlights the importance of
precision in communication, especially while writing. Use of proper words,
punctuation marks and so on is emphasised. The legal vocabulary typically
is full of words which may not be commonly used. A business leader is not
expected to use them with perfection; however, he must have a basic
understanding of some of the words and phrases used in business com-
munication, particularly those which have a different connotation from
the ordinary usage. The same is true about punctuation marks, which may
make or mar a business deal, if the parties are determined to read some-
thing different from what is normally meant. Precise use, therefore, helps
in avoiding future disputes. One can always take the help of a good lawyer,
in case of a doubt. Getting important written business communication
vetted by a legal expert is often desirable.
Chapter 3, “Should a Business Leader Talk Like a Lawyer or a Judge?,”
tries to answer the question which business leaders frequently ask when
they face the challenge of converting simple business communication into
a proper legal document. A business leader need not necessarily communicate
  Introduction  xxi

like a lawyer or a judge, but should be careful to keep his communication

simple. Being simple and straightforward in conveying one’s thoughts
about business is a great quality of a business leader; however, these
thoughts have to be cloaked in suitable legal language to make them
legally tenable according to the requirements of the particular legal
environment.
Chapter 4, “It’s All Greek to Me,” discusses some important foreign
language words, phrases and maxims, along with some cases. Despite the
best intentions of using one’s language to put the thoughts in words,
there are occasions when foreign language words creep in oral and written
communication. If we take the example of the English language for con-
veying our thoughts as business leaders, there are several words and
phrases of foreign languages—such as French, Greek, Latin and Spanish—
which find their way to the text on their own. With globalisation and
international trade growing exponentially, big markets such as China and
India also have their languages finding a noticeable acceptance. Due to
immense technological and management advances, some of the com-
monly used Japanese words and phrases have already been accepted in
business. But, the legal language still is dominated by Latin and Greek
words, phrases and maxims.
Chapter 5, “Read My Lips!,” goes into the important aspects of inter-
pretation, which make all the difference in communication. At times what-
ever a person says may not be what he really wishes to convey and that may
create problems for any person to understand the real meaning of the
communication. These problems may be of varied nature, ranging from
certain innocuous meanings to absolutely contrary meanings to what the
real message is. There are different shades of confusion which may arise in
between. It is, therefore, important for a receiver to understand the con-
text and pay attention to what the sender wishes to communicate. A lot
depends on the relative position of the two and the difference in their
stature. In situations of one person commanding the other, it is of utmost
importance that there is a certain expectation of the nature of communica-
tion made between each other, and that is met.
Chapter 6, “Man Is a Social Animal,” discusses the emergence of social
media in recent times and the importance it deserves in business commu-
nication, along with the legal implications. In the last decade or so there
have been dramatic changes observed in the way social media has been
emerging, thanks to the galloping development in technology and differ-
ent business models which make this technology easily accessible to almost
xxii  Introduction

everyone, irrespective of the economic strata to which they belong.

Businesses find it challenging in the changing times to keep pace with the
revolutionary changes happening in the social media as businesses ought
to be moving ahead with the changes and keeping themselves aligned with
the extremely fast-changing norms lest they should fall back in the compe-
tition race. However, in this entire exercise they must maintain legal
uprightness, both in content and language used.
Chapter 7, “Speech Is Silver, Silence Is Golden,” discusses about exer-
cising the option of not communicating, which is also quite effective for
businesses. The chapter examines as to how silence fits in the scheme of
things. Is silence always golden? Several occasions demand the least infor-
mation to be shared by a business leader, and at times the least informa-
tion may mean no information at all. Thus, a business leader has to decide
when to keep mum and not necessarily disclose any information. At times
there may be a legal requirement to speak up, and at certain different
times a person may not be required to speak at all, depending on the con-
text. Very often, business leaders opt the tactical move of remaining silent
even when provoked to the fullest. In such a situation one important thing
to be considered by such leaders is to take the statutory conditions into
consideration so as not to be caught on the wrong foot legally.
The book, hopefully, will be of relevance to businesspersons who would
like to use the communication skills in an effective manner and at the same
time comply with the legal provisions.