Curs 5 Engleza anul III - Drept
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Transcript of Curs 5 Engleza anul III - Drept
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Drafting Legal Documents
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1. Prepare an outline. Before you start to draft a set ofregulations, prepare an outline to organize the subjectmatter of the regulations. The amount of effort that youput into this startup phase of a drafting project has
great impact on the usefulness of the final product.Without proper organization and arrangement, and theclarity that results from the use of good draftingprinciples, the major topics of a document can easilybe lost. Use of the following principles should makeyour outline a beneficial tool.
.
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Types of Meetings
2. Establish a single principle of division and use thatprinciple to divide the subject matter into major topics.
First, establish a principle of division. Consider the one ormore audiences that the regulations address. For example, if
you are addressing a problem about cats, you would organizethe material differently, depending on the audience you areaddressing.
After establishing the basic principle of division based on the
audience addressed, you should organize the subject matterof the document by major topics. In many cases, the majortopics are apparent and may influence you to change yourprinciple of division.
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3. Arrange the items within a topic in a logical sequence.Once you have established your classifications, you mustarrange them in a sequence that is helpful to the audience youare addressing.
Here are some suggestions to help you arrange theinformation in your regulations:
Place general provisions before specific provisions.
Place more important provisions before less important
provisions.
Place more frequently used provisions before less frequentlyused provisions.
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Place permanent provisions before temporary provisions.
Place administrative provisions (such as effective dateprovisions) and penalty provisions at the end.
Headings
Use a heading for each designated component of theregulations. A heading is a catch line that describes thesubject matter of a particular component of your regulations.Descriptive headings should illustrate the logic and
arrangement of your regulations. Descriptive headings helpreaders locate the provisions of the regulations that apply tothem.
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Use headings to indicate that a group of related subjects istreated together in a single section.
EXAMPLE:
2.6 Filing complaints; time limits; action by the Board.
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Purpose Clause1. Include a purpose clause only when necessary. A
purpose clause is a simple statement of intent that appears atthe beginning of a part or subpart. The purpose clause is used
to help the reader interpret the regulations. Use a purposeclause only when you know that some of your sections, due totheir complex substance, are difficult to understand. If youneed a purpose clause, draft it after you draft your regulations.Otherwise, it can become a crutch used to avoid resolvingdifficult substantive issues in the regulations.
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2. Do not include a substantive rule within a purposeclause. A substantive rule belongs in the main body of theregulations. A reader may miss a rule tucked away in whatshould be limited to a simple statement of purpose.
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1. Write in the active voice. The active voice eliminatesconfusion by forcing you to name the actor in a sentence.This construction makes clear to the reader whois toperform the duty.The passive voice makes sentences longer androundabout. Who is responsible is much less obvious.
The passive voice reverses the natural, active order ofEnglish sentences. In the following passive example thereceiver of the action comes before the actor.
Passive: The regulation [receiver] was written [verb] by thedrafter [actor].
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Active: The drafter [actor] wrote [verb] the regulation [receiver].
Passive constructions are confusing when used in regulations.Active sentences must have actors, but passive ones are
incomplete without them.
The material will be delivered. By whom?
The start date is to be decided. By whom?
The figures must be approved. By whom?
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Putting the actor before the verb forces you to be clear aboutresponsibility.
The messenger will deliver the material.
The contractor will decide the start date.
The administrator must approve the figures.
The passive voice is appropriate when the actor is
unknown, unimportant, or obvious. This does not usually
apply in regulatory text.Small items are often stolen.
The applications have been mailed.
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DON'T SAY SAY
give consideration to consider
is applicable to applies to
make payment pay
give recognition to recognize
is concerned with concerns
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2. These are called action verbsThey are called "nominals" - nouns with verbs inside. They are
hard to read and make sentences longer. Action verbs areshorter and more direct
shallimposes an obligation to act, but may be
confused with prediction of future action
will predicts future action
must imposes obligation, indicates a necessity to act
should infers obligation, but not absolute necessity
may indicates discretion to act
may not indicates a prohibition
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To impose a legal obligation, use "must."
To predict future action, use "will."
DON'T SAY: The Governor shall approve it.
SAY:The Governor must approve it. [obligation]
OR: The Governor will approve it. [future action]
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5. Use the present tense. A regulation of continuing effectspeaks as of the time you apply it, not as of the time you draft itor when it becomes effective. For this reason, you should draftregulations in the present tense. By drafting in the presenttense, you avoid complicated and awkward verb forms.
DON'T SAY: The fine for driving without a license shall be$10.00.
SAY: The fine for driving without a license is $10.00.
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6. Write positively. If you can accurately express an ideaeither positively or negatively, express it positively.
DON'T SAY: The Governor may not appoint persons otherthan those qualified by the Personnel Management
Agency.
SAY: The Governor must appoint a person qualified by thePersonnel Management Agency.
A negative statement can be clear. Use it if you'recautioning the reader.
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DON'T WALKDON'T SMOKEBut avoid several negatives in one sentence.
DON'T SAY: A demonstration project will not be approved
unless all application requirements are met.
SAY:A demonstration project will be approved only if theapplicant meets all requirements.
It's better to express even a negative in positive form.
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DON'T SAY SAY
not honest dishonest
did not remember forgot
did not pay any attention to ignored
did not remain at the meeting left the meeting
did not comply withor
failed to comply withviolated
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7. Avoid use of exceptions. If possible, state a rule or categorydirectly rather than describing that rule or category by stating itsexceptions.
DON'T SAY: All persons except those 18 years or older must...
SAY: Each person under 18 years of age must...
However, you may use an exception if it avoids a long andcumbersome list or elaborate description. When you use anexception, state the rule or category first then state its exception.
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8. Avoid split infinitives. The split infinitive offends manyreaders, so avoid it if you can.
DON'T SAY: Be sure to promptly replyto the invitation.
SAY:Be sure to reply promptlyto the invitation. or SAY:Besure to replyto the invitation promptly.
9. Use the singular noun rather than the plural noun. To the
extent your meaning allows, use a singular noun instead of aplural noun. You will avoid the problem of whether the ruleapplies separately to each member of a class or jointly to theclass as a whole.
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DON'T SAY: The guard will issue security badges to theemployees who work in Building D and Building E.
SAY:The guard will issue a security badge to each employeewho works in Building D and each employee who works inBuilding E.
unless you meanThe guard will issue a security badge to each employee who
works in both Building D and Building E. (There are otherpossible meanings.)
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10. Be consistent. Don't use different words to denote the
same things. Variation for the sake of variation has noplace in regulation writing. Using a synonym rather thanrepeating the precise term you intend just confuses thereader.
DON'T SAY: Each motor vehicleowner must register hisor her carwith the AutomobileDivision of the MetropolitanPolice Department.
SAY: Each automobileowner must register his or her
automobilewith the AutomobileDivision of theMetropolitan Police Department.
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Don't use the same word to denote different things.
DON'T SAY: The tankhad a 200-gallon tankfor fuel.
SAY: The tank had a 200-gallon fuel container.
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11. Use parallel structure. Arrange sentences so that parallelideas look parallel. This is important when you use a list.Nonparallel construction:
The duties of the Executive Secretary of the AdministrativeCommittee are:
To take minutes of all the meetings; (phrase)
The Executive Secretary answers all the correspondence;
and (clause)Writing of monthly reports. (topic)
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Video conferencing
Parallel construction:To take minutes of all the meetings;
To answer all the correspondence; and
To write the monthly reports.12. Prefer simple words. Government writing should bedignified, but doesn't have to be pompous. Writing can bedignified when the language is simple, direct, and strong. To
make your writing clearer and easier to read -- and thus moreeffective -- prefer the simple word.
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DON'T SAY SAY
construct, fabricate make
initiate, commence begin
terminate end
utilize use
substantial portion large part
afforded an opportunity allow
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13. Omit needless words. Don't use compound prepositionsand other wordy expressions when the same meaning can beconveyed with one or two words.
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DON'T SAY SAY
because of the fact that since (because)
call your attention to the fact that remind you
for the period of for
in many cases often
in many instances sometimes
in the nature of like
the fact that he had not succeeded his failure
the question as to whether whether
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14. Avoid redundancies. Don't use word pairs, if the wordshave the same effect or where the meaning of one includedthe other.
Examples: Word pairs to avoid
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any and all
authorize and direct
cease and desist
each and every
full and complete
order and direct
means and includesnecessary and desirable
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USE WORDS
LIKE
ability achieve benefit guarantee
please reasonable reliable service
useful you
RATHER THAN
THESE WORDS
alibi allege blame complaint
impossible liable oversight unfortunate
waste wrong
USE WORDS
LIKE
ability achieve benefit guarantee
please reasonable reliable service
useful you
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RATHER THAN
THESE WORDS
alibi allege blame complaint
impossible liable oversight unfortunate
waste wrong
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Avoid noun sandwiches. Administrative writing uses toomany noun clusters -- groups of nouns "sandwiched" together.Avoid these confusing constructions by using moreprepositions.DON'T SAY:Underground mine worker safety protection
procedures development.
SAY:Development of underground procedures for theprotection of the safety of mine workers.
OR MORE LIKELY:Development of procedures for theprotection of the safety of workers in underground mines.
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DON'T SAY SAY
Crewman Crew member
Draftsman Drafter
Enlisted men Enlisted personnel
Fireman Firefighter
Foreman Supervisor
Manhours Hours workedManpower Personnel, workforce
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Don't use gender-specific terminology(the previous table)DON'T SAY:The administrator or his designee must
complete the evaluation form.SAY:The administrator or the administrator's designee must
complete the evaluation form.Be careful when you rewrite to avoid the problem. Thefollowing examples don't necessarily have the same meaningEach Regional Director will announce his or herrecommendations at the conference.
The Regional Directors will announce their recommendationat the conference.
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Write short sentences. Readable sentences are simple,active, affirmative, and declarative.
The more a sentence deviates from this structure, the harderthe sentence is to understand.
Long, run-on sentences are a basic weakness in legaldocuments.Legal documents often contain conditions which result incomplex sentences with many clauses.
The more complex the sentence, the greater the possibility fordifficulty in determining the intended meaning of the sentence.
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SolutionsState one thing and only one thing in each sentence.
Divide long sentences into two or three short sentences.
Remove all unnecessary words. Strive for a simple sentencewith a subject and verb. Eliminate unnecessary modifiers.
If only one or two simple conditions must be met before a ruleapplies, state the conditions first and then state the rule.
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If two or more complex conditions must be met before a ruleapplies, state the rule first and then state the conditions.
If several conditions or subordinate provisions must be metbefore a rule applies, use a list.
Make lists clear and logical in structure. Listing provideswhite space that separates the various conditions. Listing canhelp you avoid the problems of ambiguity caused by the words
"and" and "or".
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Use short paragraphs. A writer may improve the clarity of aregulation by using short, compact paragraphs. Eachparagraph should deal with a single, unified topic. Lengthy,complex, or technical discussions should be presented in aseries of related paragraphs.
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DON'T SAY SAY
accorded given
adequate number of enough
afford an opportunity allow, let
afforded given
all of the all the
approximately about
attains the age of become... years old
at the time when
attempt [as a verb] try
by means of by
calculate compute
category kind, class, groupcease stop
commence begin, start
complete [as a verb] finish
conceal hide
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DON'T SAY SAY
expiration end
feasible possible
for the duration of during
for the purpose of holding[or other gerund]
to hold or comparable infinitive
for the reason that because
forthwith immediately
frequently often
hereafter after this... takes effect
heretofore before this... takes effect
implement carry out, do follow
portion part
possess have
preserve keep
prior earlier
prior to before
proceed go, go ahead
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DON'T SAY SAY
procure obtain, get
prosecute its business carry on its business
provides guidance for provides
provision of law law
purchase [as a verb] buy
pursuant to under
remainder restrender [in the sense of "cause to be"] make
render [in the sense of "give"] give
require [in the sense of "need"] need
retain keep
specified [in the sense of "expresslymentioned" or "listet"]
named
State of Kansas Kansas
subsequent to after
suffer [in the sense of "permit"] permit
sufficient number of enough
summon send for, call
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How to Write a Legal Letter of IntentA legal letter of intent, also known as a Memoranda ofUnderstanding or Memoranda of Agreement, is a legaldocument in which a buyer states his intentions to pursue
negotiations to purchase your business. The letter of intentserves as a signal that you and a buyer are in seriousnegotiations, and it normally comes into play after both partiessign a Confidentiality Agreement, which is a legal documentthat says neither you nor the buyer will disclose certain
confidential information about the business transaction andfuture business dealings.
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Instruct ions1 Start the letter by using a professional business letter
template. This means you should include a formal heading anda date at the top of the letter, as well as the recipient's
business address. Your legal letter of intent should be on plainwhite paper, and should use a basic serif font such as TimesNew Roman with a font size of 10 or 12. Be sure your marginsare set at 1 inch on each side, and try not to fit it on one page.
2 Write the introductory paragraph of the letter. State yourpurpose or interest, and provide an overview of your business.Include your name and the name of your buyer or buyers.
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3. Write a paragraph that includes a confidentiality and non-disclosure clause. Even though you likely signed a confidentialityagreement, including this clause in your letter of intent is an extrastep to ensure the buyer doesn't disclose any confidentialinformation that he learns during the negotiation process.
4.Include an "acceptance paragraph" in the legal letter of intent,which is a statement in which you indicate your intent to pursuegood faith negotiations with the buyer. Include a line in theacceptance paragraph that you won't pursue negotiations with
other interested parties while you are working with the currentbuyer. Give written permission for the buyer to reach out to yourbanker or your accountant to get certain information about yourbusiness.
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5. Specify a time period for the completing the deal. This will helpyou keep the negotiation process on track, and give you and youbuyer a documented time frame from which to work by.
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How to Write a Legal Business LetterLearning how to write a formal legal business letter may benecessary at some point in a professional's life. Not every legalbusiness letter will be the same, but there are basic guidelines
a user can follow to write a successful professional legalbusiness letter.
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Instruct ions1. Set up the layout of the legal business letter. Set the
margins at one inch (from every direction). Use the font ofTimes New Roman, 12 point. Paragraph headings can be used
if the letter is longer than one page. Paragraph headingsseparate different subjects, adding clarity to new topics. Writethe paragraph headings in bold.
2. Address the letter. The sender's return address will be
placed in the upper left corner. If using paper that hascompany stationary or a letterhead, a return address will notbe needed. The address will appear as:
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Full name and titleCompany name
Company address
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3. Begin the letter with a salutation. Dear (name) (add a last nameif you do not know the addressee very well). Add a comma orcolon, whichever is preferred. A comma is less formal than a colon.Skip the next line.
4. Write the body of the letter in full block style, aligning the letteralong the left margin. Do not indent the beginning of paragraphs.Skip one line between each paragraph. Add one space followingpunctuation. Do not use colons or semi-colons in the body of theletter. Sentences should be less than twenty words long. Be clearand concise.
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5. Sign the letter. This format is a matter of personalpreference. Possibilities include: Sincerely, Regard, BestRegards or Best Wishes. Then leave space for adding thehand-written signature at the end of the letter.
6. Proofread the letter carefully. Make sure all punctuation,spelling and grammar are correct. It helps to read the letteraloud; it is easier to catch mistakes this way. Have someoneelse proofread the letter before it is sent.
7. Print the letter on high-quality stock paper. Use neutralcolors like white or off-white.
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8. Address the envelope. A typed envelope is the best formfor a business letter as it adds a professional quality to thecorrespondence. The return address will be located at the topleft of the envelope. The receiver's address will be located atthe center bottom of the envelope. Place a stamp in the upper
right corner, and the letter will be ready to send.
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Rule One - Keep in mind that no matter how upset you are,don't let your hostility spill over into your writing. To be takenseriously it is essential to keep a calm and professional tonein your letter. This means no blaming, no name calling, anddefinitely no foul language.
Rule Two - Use a three point approach. This approach breaksdown your letter into three paragraphs with each one havinga specific purpose.
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Paragraph one - needs to clearly explain the transaction orsituation you had expected. Use as much detail as possible inthis paragraph. Be certain to list dates, dollar amounts (bothby unit and total), names, and any other pertinent information.This will give the reader an idea of your perspective on the
situation.
Paragraph two - explains the problem. Remember, don'tblame. Everyone makes mistakes so keep this assumption inyour mind as you write. Mention any copies of documentation
which substantiates your claim. For example, if you have acopy of the advertisement showing a $150 rebate and thecheck that you received for only $50.
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Paragraph three - is the resolution. Many people have a badhabit of stopping after the second paragraph. They can easilystate what they wanted and even more easily point out theflaws, but the third paragraph is critical. This is where you tellthe reader exactly what you want them to do. Don't ever
assume that a complaint alone is enough. Many times it isn't. Ifyou want a check sent, say so! If you need a replacement ofpoor quality merchandise, tell them!
\
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\
Rule Three - Give contact information. If there are questionsregarding your letter, who should be contacted and how? Lista valid phone number or email address. This should be at theend of the third paragraph.
Rule Four - Use a professional business letter format. Thiswill help bring the reader's respect and add credibility to yourwriting.
Rule Five - As you close your letter thank the reader for their
assistance. People respond better when they feel they arebeing asked and appreciated, rather than ordered.
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Thank you!