Table of contents

Drafting contracts

(d) Delete unnecessary words

. Finalising a contract by deleting the superfluous words makes it crisp. Deleting unnecessary words brings the truly important matters to the surface. This is even more important in contract drafting than in other writings. A woolly novelist may bore the reader; but a wordy contract drafter may even create ambiguity.

In der Beschränkung zeigt sich erst der Meister.[1] (Dare to delete.)

The following ‘drop dead provision’ can be much shorter:

This Agreement may be terminated at any time prior to the Completion by either Party, if the Completion shall not have been consummated on or before 31 March 2008, provided that the termination right shall not be available to any Party whose failure to perform any material obligation under this Agreement is the cause of such delay.

The provision states an exception that will likely apply in every mature jurisdiction: one cannot have cake and eat it. Therefore, more appropriate would be:

Each Party may terminate this Agreement at any time prior to the Completion, if the Completion shall not have taken place before 1 April 2008.

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 a true uncertainty. Often, deleting words or clauses makes clear what really matters. [1] Goethe, Natur und Kunst, 1802.

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Drafting contracts

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