DRAFTING TIPS ON COMMERCIAL CONTRACT
1. ALWAYS BE PRECISE AND TO THE POINT: If you put in lengthy drafts, you impose irrational demands on the other person. Contract drafting, like much other writing, is easier to understand if it is split into shorter paragraphs. In ordinary writing, the draft is a sentence. In contract drafting, the draft can be shorter than a sentence – a single numbered or lettered sub-paragraph without repeating any single thought. 2. CONCENTRATE ON VOCABULARY: Lawyers have a reputation for using ambiguous language in all their writing, particularly perhaps in contract drafting. Everybody outside the profession has heard of “legal comfort” and suspects that lawyers use it to make themselves seem important. Surely, if we draft in language that ordinary people use and understand, they will respect us more, not less. Sometimes, lawyers respond to criticism by saying that the language they use is needed because it has a special legal significance. But they give the lie to this by using old-fashioned expressions even for simple, non-legal concepts. 3. FREQUENTLY USE “IF” TO INDICATE “IN THE EVENT OF”: Many contractual terms exist to set out what the parties contemplate should happen if particular circumstances occur. Often, the circumstances are not thought of as likely, but the parties want to set out what happens if they do come to pass. Drafting like this often lends itself to appearing as “if x, [then] y”. It is good to follow that format: readers understand express conditions readily, and other formulations are less obvious. 4. AVOID USING “PROVIDED THAT”: “Provided that” is an ambiguous phrase. Sometimes it means “if” (I’ll leave my umbrella at home tomorrow, provided that it’s not raining when I set out”). But often, in contracts, it’s used lazily as a way of bolting on some new language to an existing draft, when it doesn’t mean “if” so much as “and here is something else the parties have agreed”. The phrase is better avoided. 5. BE CAREFUL WITH LISTS: Lawyers like to be precise and spell things out explicitly in contracts. That is usually a good thing. But sometimes drafting a list is dangerous. If you say that X is to happen in circumstances (a),(b), (c) and (d), it’s easy to argue that you must mean that if different circumstance (e) occurs, X is not to happen. 6. DO NOT USE TEXT REPEATEDLY: The Lawyers like doubling up expressions: each and every, full force and effect, any and all. They are usually not needed and serve only to confuse. The drafting comes across as stale, as if the lawyer has lazily reached for a standard (often obscure) expression without wondering whether it really suits the circumstances. Each paragraph must address single issue comprehensively and should not be scattered throughout the draft. 7. MISTAKES DO WORRY, EVEN THOUGH THEY DO NOT TRIGGER ANY DISPUTE: Judges are only human. They are used to dealing with contract disputes. They say openly that they are influenced by the overall quality of the drafting that comes before them. The draft must look into future possibilities and unforeseen circumstances. 8. WATCH OUT FOR UNCERTAIN MODIFIERS: The most common source of ambiguity in contracts that the lawyers need to be alert is that the person drafting should understand the problem and fix it before it arises. The problem arises when the writer uses some language that is intended to modify or qualify other language in the contract, but is not skillful enough to make it clear exactly how far the modification or qualification extends. 9. DO NOT CONCEAL OBLIGATIONS OF THE PARTIES: A contract exists to record the obligations of each of the parties to it and if it is to do so clearly, it needs to be explicit about what those obligations are. That sounds obvious, but sometimes drafting is half-hearted, and assumes that an obligation exists without coming out and saying so expressly. 10. TO SUM UP – OVERALL IMPRESSION: We have looked at a number of techniques for improving on contract drafting. The draft is viewed for its overall impact and brings forward the intention of each of the party. Each of the tips discussed above individually make only a small difference to any piece of drafting. But when you add them together, they are very very powerful and result oriented. Disclaimer: This blog is strictly for informational purposes only and do not contain any legal advice. Please obtain expert opinion before acting on anything you read on this site.