The Volokh Conspiracy

Reader Ethan Hahn points to a decision from the Ohio Court of Appeals that deals with whether "clear title" means "free and clear" title. A longish but readable (because vervy) excerpt:

III. The Normans Strike Again

Monfort contends, "Although a `clear title' is one that is not subject to any restrictions, the case at bar involved a `free and clear' title, which is the same as a marketable title." So, according to Monfort, a free and clear title is worse than a clear title. Say what?

Would that Harold had not lost the Battle of Hastings.

Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.

The Norman Conquest was in 1066. We can safely eliminate the couplets now. . . . IV. The Normans Conquer Lorain County

Monfort cites Zilka v. Central South Limited, a Ninth Appellate District case that distinguished a clear title from a free and clear title in much the same way that Monfort now argues. "In short, while `clear title' cannot have any encumbrance or restriction whatsoever, `free and clear' title is a marketable title * * *." We are, thankfully, unable to find any case that has cited this aberration — the Norman invasion has not progressed any farther south in Ohio.

We may consider Zilka and give it the weight that we consider appropriate. And we consider it inappropriate to give Zilka any weight at all.

The Normans and Zilka have also corrupted an Ohio real-estate treatise — namely, Baldwin's Ohio Real Estate Law. In the section defining "marketable title," the treatise states, "Title that is `free and clear' is not the same as `clear title.' Rather, `free and clear title' means title that is unencumbered by any liens and is marketable." It then cites Zilka.

Before Zilka, we are sure that Baldwin's made no such claim. Another venerable Ohio treatise (published before Zilka) states it properly: "[`Clear title'] usually refers not to the title itself but to the absence of liens or encumbrances against the real estate. The term typically appears in the following context: The seller agrees to convey to the purchaser marketable title, `free and clear' of liens and encumbrances." So the sample used to define "clear title" used the term "free and clear" title. But Monfort argues that they are two different things. Is it any wonder that lawyers get a bad rap?

Nine hundred years later, courts in Ohio are still dealing with the consequences of the Norman invasion. We can only hope that some day logic will prevail over silly tradition. . . .

	[Eugene Volokh, January 31, 2005 at 9:35am] Trackbacks Legalese: Reader Ethan Hahn points to a decision from the Ohio Court of Appeals that deals with whether "clear title" means "free and clear" title. A longish but readable (because vervy) excerpt: III. The Normans Strike Again Monfort contends, "Although a `clear title' is one that is not subject to any restrictions, the case at bar involved a `free and clear' title, which is the same as a marketable title." So, according to Monfort, a free and clear title is worse than a clear title. Say what? Would that Harold had not lost the Battle of Hastings. Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years. So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings. The Norman Conquest was in 1066. We can safely eliminate the couplets now. . . . IV. The Normans Conquer Lorain County Monfort cites Zilka v. Central South Limited, a Ninth Appellate District case that distinguished a clear title from a free and clear title in much the same way that Monfort now argues. "In short, while `clear title' cannot have any encumbrance or restriction whatsoever, `free and clear' title is a marketable title * * *." We are, thankfully, unable to find any case that has cited this aberration — the Norman invasion has not progressed any farther south in Ohio. We may consider Zilka and give it the weight that we consider appropriate. And we consider it inappropriate to give Zilka any weight at all. The Normans and Zilka have also corrupted an Ohio real-estate treatise — namely, Baldwin's Ohio Real Estate Law. In the section defining "marketable title," the treatise states, "Title that is `free and clear' is not the same as `clear title.' Rather, `free and clear title' means title that is unencumbered by any liens and is marketable." It then cites Zilka. Before Zilka, we are sure that Baldwin's made no such claim. Another venerable Ohio treatise (published before Zilka) states it properly: "[`Clear title'] usually refers not to the title itself but to the absence of liens or encumbrances against the real estate. The term typically appears in the following context: The seller agrees to convey to the purchaser marketable title, `free and clear' of liens and encumbrances." So the sample used to define "clear title" used the term "free and clear" title. But Monfort argues that they are two different things. Is it any wonder that lawyers get a bad rap? Nine hundred years later, courts in Ohio are still dealing with the consequences of the Norman invasion. We can only hope that some day logic will prevail over silly tradition. . . .