The online book: Drafting contracts
We hope you’ll find all you need about contracts here. With this online book you’ll master all about contract drafting, thanks to hundreds of recommendations and best practices.
Please use the navigation tab on the left to read a specific section. Click below to go to a chapter.
1. General drafting principles
It's all about keeping your contract simple, and avoid ambiguity. Oh, and there are a few techniques to keep a contractual clause readable.
2. Matters of legal culture and contract styles
Everyone has their own contract drafting style. But there are also characteristic differences between American-style and non-American style of drafting a contract.
3. Contract outline (approach and clause order)
Where to start writing a contract, and how to order the contract clauses is all up to the parties. But there are a number of best practices for structuring your agreement well.
4. Structuring the transaction documents
Observations on when and how to use schedules or annexes.
5. Presentation: look & feel
Which font to choose? Every one has its characteristic - stands for something. Which font size? And what are frequently used numbering and indentation styles?
6. Typical drafting habits and 'legalese'
Old-school wording, thoughtless writing and tricky drafting. This chapter explains where it comes from and where to be careful.
7. Definitions and contract interpretation clauses
Defined terms and definitions. Much can go wrong. When to use definitions, how to present them, and numerous dilemmas resolved.
There are 22 best practice rules on defintions that prevent ambiguity.
8. Particular types of clauses
How to draft:
- Recitals
- Conditions (precedent)
- Covenants
- Warranties
- Limitations of liability
- Dispute resolution clauses
- Miscellaneous (boilerplate) clauses
9. Contract automation and legal tech
We were already concerned about legal tech and implementation in 2011.
Your own copy...
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Drafting contracts
- Part I Contract drafting: matters of style
- 1 General drafting principles
- 2 Matters of style and legal culture
- Part II Structure and presentation of contracts
- 3 Main contract outline
- 3.1 Setting up an agreement
- 3.2 Presentation styles: European vs. US style
- 3.3 A cover page and table of contents
- 3.4 First part of an agreement
- 3.5 The body of the agreement
- 3.6 Blank space after the body of the contract
- 3.7 Signature blocks, seals and witnesses
- 3.8 Aspects of signing, and initialling
- 3.9 Notarisation, legalisation and apostilles
- 4 Structuring the transaction documents
- 5 Presentation: the look and feel
- Part III Drafting contracts and contract clauses
- 6 Typical drafting habits and ‘legalese’
- 6.1 Certain funny phrases
- (a) For the avoidance of doubt,…
- (b) ‘…, as the case may be’
- (c) The issue of ‘include’ and ‘without limitation’
- (d) ‘Subject to…’
- (e) ‘Notwithstanding…’ in contracts
- (f) ‘Except as otherwise agreed…’
- (g) …provided, however, that…
- (h) ‘…from time to time’
- (i) ‘…not to be unreasonably withheld or delayed’
- (j) Shall be ‘deemed’
- (k) ‘Third parties’
- (l) ‘Hereby’
- (m) ‘To the maximum extent permitted by law’
- (n) Intentionally left blank…
- 6.2 Do‘s and don’ts
- (a) Think first: and/or
- (b) ‘In order to’ (avoid explanations)
- (c) Not shall and will (but only one of them)
- (d) ‘Said’, ‘such’ and links
- (e) Do not write -(s) and do not use /
- (f) ‘The same’ and ‘that certain’
- (g) Herein, thereof, everywhereof
- (h) ‘Mutual’ is a pleonasm
- (i) Do not emphasise the unnecessary
- (j) Use of ‘when’, ‘if’ and ‘to the extent that’
- (k) Use of synonyms and hendiadyses
- (l) Certain vague terms: without undue delay
- 6.3 Numbers and formulae
- 6.1 Certain funny phrases
- 7 Definitions and contract interpretation clauses
- 8 Particular types of contract clauses
- 8.1 Conditions, conditional clauses and triggering events
- 8.2 Covenants
- 8.3 Reps and warranties
- (a) Warranties – a quick introduction
- (b) Statements of fact, not obligations
- (c) Warranties, not representations and warranties
- (d) A warranty is incorrect (or untrue), but not breached
- (e) Smoking out the facts
- (f) Allocation of risk
- (g) Fitness for purpose and merchantability
- (h) Bringing down warranties
- (i) Survival of warranties
- (j) Disclosures in M&A agreements
- (k) Warranties in ordinary course business contracts
- (l) Warranty aspects in major transactions (M&A)
- 8.4 Limitations of liability and indemnities
- 8.5 Confidentiality clauses
- 8.6 Miscellaneous (‘boilerplate’) clauses
- (a) Notices clause
- (b) Amendments
- (c) No subcontracting
- (e) Severability
- (f) Waivers
- (g) Entire agreement and merger clauses
- (h) Further assurance (duty to cooperate)
- (i) Force majeure
- (j) Announcements
- (k) No termination or dissolution
- (l) Independent contractors (‘no partnership established’)
- (m) Time is of the essence
- (n) No general conditions to apply
- (o) Language (translations)
- (p) Counterparts
- (q) Independence of the notary
- Non assignment clauses
- 8.7 Applicable law clauses
- 8.8 Dispute resolution provisions
- Part IV Miscellaneous
- 9 Contract assembly software
- 10 Drafting certain specific types of legal documents
- Annex 1 Ten steps to a successful upgrade of your contracts
- (a) Step 1: Selection of contracts and scope of contract automation
- (b) Step 2: Establishing a best practice group: a contracts and contracting commission
- (c) Step 3: Collecting and stripping the model contracts and precedents
- (d) Step 4: Prioritising the model contracts
- (e) Step 5: Establishing the procedure and setting the agenda
- (f) Step 6: Preparing handsome proposals for discussion
- (g) Step 7: Discussing and establishing the model building blocks
- (h) Step 8: Determining the company’s contract house style
- (i) Step 9: Identifying approval requirements and business access
- (j) Step 10: Automating your contracts and implementing the workflow
- Annex 2 Document marking conventions
- Annex 3 Contract drafting conventions (sample)
- Annex 4 House style rules (sample)