Terms and conditions. Null and void. Covenant and agree. If you have ever signed a contract, you have read these pairs, and you may have wondered why lawyers can't just pick one word.
A TikTok that made the rounds recently offered an answer. After the Norman Conquest in 1066, the story goes, French became the language of England's courts while ordinary people kept speaking English. So clerks paired an English word with a French one, and everyone understood the deal no matter which language they spoke.
It's a good story. It's also only about half true, and the half that's wrong turns out to be the more useful part for anyone who signs, drafts or relies on a contract.
This is the first of three posts on five doublets I use in almost every contract I draft: terms and conditions, null and void, covenant and agree, indemnify and hold harmless, and successors and assigns. Two of them are pure decoration. One is a fossil of a distinction that mostly disappeared. One is quietly contested in the courts. And one isn't really a doublet at all.
What the TikTok got right
The broad outline holds up. After the Conquest, Anglo-Norman French became the language of the courts and Latin the language of written records, while most people kept speaking English. French wasn't formally displaced as the language of pleading until the Pleading in English Act 1362, and it lingered for centuries after that.
To make sure a document landed regardless of its reader's language, clerks got in the habit of pairing near-synonyms. That's a legal doublet.
Where the story falls apart
Not every doublet pairs English with French. Three different things are happening under the same label.
1. Real translation pairs. Some doublets were built for exactly the reason the video describes: breaking (English) and entering (French), will (English) and testament (French and Latin), fit (English) and proper (French).
2. French on both sides. Aid and abet are both French. So are cease and desist. These pairs weren't bridging two audiences. They borrowed two near-synonyms from the same prestige language, mostly for emphasis.
3. Pure padding. Scriveners drafting conveyances were often paid by the word, which is exactly the incentive you'd expect to produce redundant phrasing.
That third category is the one that matters today. The doublet habit outlived its purpose by centuries, and a lot of what looks like careful drafting is really inherited habit. So for every doublet in a contract, the real question is simple: is it doing work, or just taking up space?
Terms and conditions
Where it comes from. Both halves are French by way of Latin. Term traces to Old French terme, from Latin terminus, a boundary or limit. Condition traces to Old French condicion, from Latin condicio. There's no English half at all.
Why it matters. Term is the broad word. It covers any provision of a contract: a promise, a right, a limitation. Condition is narrower, and it can mean one of two things:
- A condition precedent, an event that must happen before an obligation kicks in, such as a regulatory approval before a sale closes.
- An essential term, one whose breach goes to the root of the contract and lets the other side walk away, rather than just sue for damages.
Which meaning applies isn't decided by a heading or a label. It turns on the actual wording, what the parties intended, and the consequences the contract attaches to the provision.
Eastwalsh Homes Ltd v Anatal Developments Ltd (1993), 12 OR (3d) 675, 1993 CanLII 3431 (ON CA), shows why this matters. Eastwalsh agreed to buy 147 building lots from Anatal, with planning approval as a condition precedent to closing. Anatal also promised to use its best efforts to get that approval.
Approval never came, and the deal ended by its own terms, exactly as a condition precedent is supposed to work. But the Court of Appeal still found Anatal in breach. The best-efforts promise was a separate term that could be broken on its own, whether or not the condition was ever satisfied. Eastwalsh recovered only nominal damages because it couldn't prove approval would have come through in time, but the breach finding stood. One clause, two different jobs.
The takeaway. In the heading "terms and conditions," condition is decorative. A few clauses later in the same contract, it might decide whether you can walk away.
Null and void
Where it comes from. Same pattern. Null comes from Middle French nul, from Latin nullus. Void comes from Old French voide, from Latin vocivus, meaning empty. No English word in sight.
Why it matters. This is about as close as doublets get to pure redundancy. In Ontario, null and void convey the same idea: no legal effect. It's the textbook example plain-language editors cut first, and nothing is lost when they do.
The distinction that actually matters is void versus voidable:
- A void arrangement has no legal effect in the respect at issue. Full stop.
- A voidable one works unless and until a party entitled to challenge it actually does, for example by obtaining rescission for a misrepresentation.
That second point trips people up. Rescission isn't automatic. It's a discretionary remedy with its own requirements. In Urban Mechanical Contracting Ltd v Zurich Insurance Company Ltd, 2022 ONCA 589, the Court of Appeal held that even fraud doesn't give a party a right to rescission. The court still has to weigh what's practically just, including the effect on innocent third parties.
Void also doesn't spread as far as people assume. In Trayanov v Icetrading Inc, 2024 ONSC 5930, a land transfer was ineffective without required planning approval, but the other obligations in the same agreement stayed in force. An agreement can be void for one purpose and very much alive for every other.
The takeaway. Cut "null." It adds nothing. But don't assume "void" does more than it does, either.
What this means for you
Whether you're signing a contract or drafting one, a few lessons from these first two doublets:
- Two words aren't more precise than one. A doublet is often habit, not care. Don't assume the longer phrase gives you extra protection.
- Labels don't decide outcomes. Calling something a condition doesn't make it one. Courts look at the wording, the intent and the consequences.
- "Void" isn't a self-executing exit. If you want out of a contract because you were misled, rescission is discretionary, and you'll need to make the case for it.
- One bad clause rarely sinks a whole agreement. The big exception for employees is the termination clause. A defect in one termination provision can take down the rest, as we explain in our post on Ghazvini v CIBC.
That's two doublets down, and neither is doing much beyond habit. The next three are where it gets interesting: one is a fossil of a distinction that mostly disappeared, until it didn't, one has courts quietly split on what it means, and one turns out not to be a doublet at all. Part 2 picks up there.
