Drafting contracts is an activity that lawyers are engaged in on a daily basis. Writing correct and accurate contracts is of utmost importance, as one mistake in a contract can lead to serious consequences. To avoid this, we have gathered 5 tips in this article to help you master your contract drafting skills and thus produce agreements that comply with the highest demands in terms of quality.
The Civil Code of California introduced a “maxim” stating that "superfluity does not vitiate". It is a reference to what we are discussing now. It simply means unnecessary, redundant or superfluous words should simply be omitted from the contract. The lack of such terms do not reduce the value of the contract provisions at all, but helps to clarify the contract and makes it easier-to-read. How to achieve this?
Keep one thought per sentence. Break up multiple conditions or exceptions into simple sentences or lists in order to make it more digestible. Do not use sentences with double negatives or exceptions to exceptions. In theory, a sentence should not be longer than 25 words. Remember the rule: “Keep It Short and Simple.”
Avoid excessively archaic words; although they may look and sound great in the text, there is a chance that they might make your contract more difficult to understand. Instead, replace them with an up-to-date expression which is known to everyone. Get rid of old-fashioned legal doublets when they don’t carry meaning. E.g.: use right for right, title and interest, unless the context specifically otherwise requires.
Are you one of those drafters of archaic documents? Complete this test to determine whether you comply with the requirement of using plain English!
Contracts have been written for hundreds of centuries and many traditions have evolved since. When you write a contract, you have to strike a balance between adhering certain conventions while still keeping the text as simple as possible. How to achieve this?
a) Stick to conventional phrases when an alternative may be felt out-of-context. For example a “prior written consent”, although rather old fashioned, is exactly what you need when you need to get the green light before you taken action, and it is not enough to get a verbal OK .
b) Don’t override conventional uses of English as your strive to keep your texts simple and short. Your effort to use plain English should not be in conflict with the established practice. You might find “joint and several liability” complicated but may be the only term describing the right form of liability.
Are you familiar with the conventional use of phrases in Legal English? Check your knowledge with this test!
a) Use terms consistently throughout the document. Ensure consistency of legal terms in all contractual provisions. E.g. use consistently "Seller" and "Buyer" to express a party, don’t switch to Buyer and Purchaser randomly, as it might cause confusion. Define the terms of art to be used at the beginning of the document to avoid misunderstandings.
b) Pay attention to the differences between the legal systems. You probably know that certain common law terms do not make sense in a civil law environment, or have absolutely different meanings. Beware of these differences. If you need a structured overview of the civil law terminology, our best tip is the book on the Terminology of Civil Law.
Test your knowledge of the use of legal terms with this quiz!
Using correct English might sound as a cliché, but it can bear greater power than most of us would think. Imagine reading through a contract that you have paid money for full of grammatical mistakes. Wouldn’t it be frustrating?
a) Go back to what you learnt at school. Use the grammar that you are familiar with. Simple sentences setting out “who has to do what, where, when and why” could work much better than complex provision when, at the end, no one will understand who is required to do what.
b) Don’t try to impress the reader with your advanced knowledge of English. A simple but well-written contract will make much better impression than one using excessively sophisticated language.
Test your grammar skills here!
Make sure that your text makes sense. Use words that convey meanings clearly. Be careful when a legal word has an everyday meaning, as it might be a source for misunderstanding. Avoid these words, if you have an alternative to use. Above all, use your common sense, make sure what you write cannot be understood in two different ways.
a) Avoid using unknown words; try to express them by words that you are surely familiar with instead. Don’t take words from dictionaries without knowing what they mean exactly, as you might end up causing serious misunderstandings.
b) It is a good idea to read out the difficult sentences aloud. If you cannot read it, there is a good chance that it is not only your reading skills that are to blame but your sentence needs some revision.
Test your skills in identifying the clear sentences in the exercise below!