Sentence structure, intonation and ambiguity #
One of the most important features of simple and clear language are the sentence structure, intonation and your paragraph setup. Well-structured sentences, taking into account the normal intonation reduce risks of ambiguity – more than you think. In this paragraph, we will discuss several techniques to improve your style.
Keep subject, verb and object together (SVO)
Sentences in the English language fairly strictly follow an order of subject-verb-object (SVO). Texts are easier understood if the actor (the subject) and the determination of his action (the verb) are close together at the beginning of the sentence. A document becomes harder to read when you create unnecessary gaps between the subject and the verb. The Dutch and Germans have the patience for that. If the sentence also contains an object, this would be best positioned early on in the sentence but always after the subject and the verb. Sometimes, this should be achieved by turning the intervening words into a separate sentence or by moving them to the beginning or end of the sentence. An example:
The Seller hereby sells and transfers the boat.
Here the seller is the subject (S), sell is the verb (V) and boat is the object (O). This very simply example can be contrasted with the following:
The Seller hereby sells and transfers, subject to purchaser providing x, y and z indemnities, the boat.
In this example, readability improves if the boat is moved to the beginning or, probably even better, the indemnities can be moved to the next sentence or even a separate article headed Indemnities.
Order your contractual concepts
Sometimes, the object of an obligation consists of several concepts. If you prefer not to split the sentence, it is a good idea to structure the object of the obligation so that the reader will catch all the concepts at once and is able to remember each. In line with this, use a natural sequence in which the concepts are commonly experienced. An example of a messy sequence:
…to use, sell, have sold, manufacture, have manufactured, modify, have modified, distribute and have distributed the Licenced Product.
Obviously, a product is not first used, then sold, then manufactured etc. Few people can reproduce this. Conversely, many people are able to reproduce even a long sequence if it is logical. Furthermore, bring together the items that relate to each other:
Force Majeure means [acts of God such as earthquake, flood, storm or lightning, fire], [accident, explosion, sabotage, war, terrorism, riot, civil disturbance, epidemic]…
Grouping subordinate clauses
An effective technique to increase legibility is to separate out the exceptions, qualifications or conditions. Often, the visual subdivision in separate (indented) subparagraphs increases readability. Sentences should be short-cut if they pile up clauses that could well stand on their own or if exceptions, qualifications or conditions can be separated and moved to a separate sentence. Alternatively, you could subdivide the exceptions, qualifications or conditions in separate (indented) subparagraphs:
Seller shall indemnify Purchaser against all costs and damages to the extent caused by the following facts or events preceding the Closing Date:
(a) any contamination on the Manufacturing Site related to discontinued activities as of Signing Date, provided that (i) Purchaser gives Seller full control in handling such contamination and related damages, and (ii) promptly notifies Seller of all communications with Governmental Authorities and interested persons;
(b) the environmental remediation of the Manufacturing Site related to current activities, provided that:
(i) the remediation is initiated within 12 months from the Closing Date;
(ii) Target and Purchaser have obtained written approval of Seller for remediation actions undertaken (which consent may not unreasonably be withheld or delayed) and have kept Seller fully informed of all communications with Governmental Authorities and other interested persons; and
(iii) the remediation is for the contaminations identified on Schedule 3 only and is substantially in accordance with a remediation plan agreed between the Parties and approved by the Governmental Authorities,
up to a maximum of EUR 1 million.
Please note that by the level of indentation, the limitation to one million euro applies to section (b) only.
The left-right principle (or: pyramid principle): intonation
Left-right principle. You will make reading easier if you formulate the sentence such that it reads from a known or familiar context into the main message. In many languages, the unguided reader will read to the end of a sentence in an (unspoken) ascending or descending tone. At the end of the sentence, where the tone reaches the peak (or bottom), the reader unconsciously ‘seeks’ the most important information. This is called the left-right principle and may help the writer structure a text and each sentence. This is illustrated by the following graph:
If you want to make it the reader easy, start with a subject that is known (because it was addressed in the preceding sentence) and end the sentence with what you want to achieve with that sentence. This left-right principle equally applies to structuring a paragraph or section and to structuring your entire contract and even the set of transaction documents. The principle implies that simple matters are addressed first and complications later on in the sentence, paragraph or contract.
If the most important information is halfway through the sentence (instead of at the end), the reader may miss the importance of it or even the entire point. Contract clauses should adopt the left-right principle by limiting and structuring the information in the sentences of a section. For example:
A is followed by B and C. B implies D. C causes E. D and E support the conclusion F.
The left-right principle somewhat discords with how people think: a normal person starts with the main point and then deals with the exceptions and limitations. You would make the reader comfortable by first driving your point home. The left-right principle on the other hand, suggests using familiar concepts and a known context first and then work towards the key point. A technique to redress this discordance is to limit the scope of a sentence to introducing only one or two ‘new things’ per sentence.
Paragraph structure #
Signalling sentence. It also helps to start a paragraph with a signalling sentence addressing the main topic or conclusion and then ‘restart’ the paragraph. The topical paragraph structure of the previous example could therefore become:
A leads to F. A is followed by B and C. B implies D. C causes E. D and E support the conclusion F.
The signalling (or topical) sentence may well be used to convey a basic, but often forgotten, statement. For example, a research agreement or a joint development agreement normally supports a project plan or statement of work, where those latter documents are the essence of the relationship; in particular if one party is required to propose a project setup, it makes sense to start the article dealing with the contents of the project plan or ‘SoW’ with:
Service Provider shall work out all details of each Development Project in a Statement of Work. Each Statement of Work proposed by Service Provider to Customer must set forth…
The left right-right principle, as well as using a signalling sentence, also discords with how people perceive other people’s communications: an audience tends to visualise. This would mean that a message is better received if you start with an example and continue with the substance. If you want to prevent a reader visualising his or her own example, start with the right one yourself. Then elaborate on that example to make your point. For example:
The Parties shall use best efforts to have the Conditions satisfied as soon as practicable. In particular, Purchaser shall, in respect of the Condition in Article 2.1(c): (a) make appropriate filings…; and (b) propose all such remedies as…
In this example, the first sentence states the main principle. This makes reading the subsequent sentence easier. It would be understood as an elaboration on the principle of best efforts. Note, however, that if you replace in particular by the word furthermore (or in addition), the second sentence converts into a firm obligation standing on its own (!)