Contract drafting is a specialised form of business writing. By business writing I mean any writing done at work, whether in a commercial, government or other environment. Some of the “rules” of good business writing, or of writing generally, can be applied to contract drafting. For example, it is a good idea to use short sentences and paragraphs, and keep the language as plain as it consistent with your drafting intentions. US-style contract paragraphs that run on for more than a page should definitely be avoided, as should sentences that run on for hundreds of words.
Other aspects of general writing are less relevant to contract drafting. General writing practice may frown on repeated use of the same word, preferring what Fowler called elegant variation. In a school essay, it may be good form to refer to someone as a boy in one paragraph, a lad in another, and a youth in a third. In contracts, the same word should be used repeatedly if the same meaning is intended. If a different word is used (eg affiliate in one clause and subsidiary in another), the judge may assume that a different meaning is intended.
Understanding what the general writing conventions are, when to use them, and when to avoid them, are all part of the contract drafter’s toolkit. An advanced contract drafter is likely to be aware of some of the guide books in this area, such as (in the UK) the Complete Plain Words, originally by Sir Ernest Gowers, or (in the US) the Chicago Manual of Style.
As time passes, writing conventions change. People of IP Draughts’ generation know that some people get very exercised about certain conventions. If you disagree with, or don’t care about, these conventions, that is fine by me, but be aware that your professional work may be disparaged for apparently trivial reasons by people who do care about them. Some of us are tempted to go along with the conventions for a quiet life. Some of IP Draughts’ younger colleagues are unfamiliar with these conventions. Perhaps Disgusted of Tunbridge Wells has reached retirement age, and no longer carries the nation with him or her (or do I mean them?)
In no particular order, and with no attempt at being comprehensive, here are some that have been hard-wired into IP Draughts’ consciousness as a result of childhood indoctrination. When he breaks the convention (as he often does) he does so with a few drops of residual guilt running through his veins.
Don’t split an infinitive. But splitting an indicative is fine. To boldly go where no man has gone before is considered wrong, but for tedious historical reasons you will boldly go is fine.
Data is a plural noun. The singular form is datum.
Don’t end a sentence with a preposition. Winston Churchill is thought to have been writing ironically when he scribbled in the margin of a paper that had been sent to him, “up with this I will not put”. By using this convoluted phrase he avoided saying “I will not put up with this”; the latter version ends with a preposition.
Don’t start a sentence with a conjunction (eg and or but). As a mischievous schoolboy, IP Draughts liked to start sentences with “But for the …” (an exception to the no-conjunctions rule) in the hope of catching out his pedantic English teacher.
General drafting conventions are covered in our course on Advanced Contract Drafting – details here.