Drafting contracts

1.1 Plain English: simple and clear

Use ‘plain English’ in contracts: a businessman should be able to understand what it says. The involvement of a legal counsel should be necessary only to give an impartial view, oversee the legal consequences, to clarify that certain phrases are normal or to confirm that indeed they reflect the parties’ intentions. The legal aspects of a contract should be limited to what is being expressed, not how it is expressed. (No tricks!) Old fashioned contractual language, which is not plain English (anymore) will make a contract harder to read. It will also not serve the interests of the parties.

Plain English. What is plain language, especially plain legal language? It is ordinary ‘adult English’, used in day-to-day context. It is language stripped of archaic ‘legalese’ or the latest business jargon and vocabulary, supported by a proper layout and typography of the text. As regards spelling, a multinational company may prefer British English (or another) to U.S., Canadian or Australian English but in either case, language should be used consistently.

Don’t. Nevertheless, do not use:

  • …it’s…
  • …ain’t…
  • …won’t…
  • …can’t…
  • Purchaser should not
  • Licensee should
  • owe Seller…

…for obvious reasons (?)

No archaisms. There is no need to include archaisms such as WITNESSETH or oddities such as the use of both words and numerals to express numbers (words may be useful because a number is easy to misprint, but equally risky is updating figures whilst forgetting the corresponding words; words to ascertain that 30 days are “(thirty)” days and not “13” or “20” is ridiculous). The use of Latin terms is not archaic but you should avoid grotesque speech.

Important and necessary. A good drafter determines what is important. It is important to understand where in the business the real risks or avoidable exposures are, or where the desired performance by a party is not self-evident. Secondly, a drafter should consider whether providing for it is necessary; in other words, who carries the burden of any true uncertainty? Often, deleting words or clauses makes clear what really matters.