Judging the quality of contract drafting

itamaeIt is said that Japanese sushi chefs undergo years of training, learning from a master the fine arts of cooking the rice to a house style, preparing the fish and other ingredients, shaping the nigirizushi, conducting oneself in front of the customers, and even making diplomatic mistakes in the calculation of the bill.

Such devotion to detail may be thought excessive for what is regarded, at least in the UK, as a mass-produced snack item that can be found in most supermarkets, its place now well-established in the chiller cabinet next to Cornish pasties and coronation-chicken sandwiches.

Similar thoughts are prompted by the subject of contract drafting. Should we treat contracts as a commodity to be bought from an online supermarket (such as PLC or PSL), or are they a bespoke item whose preparation requires the skills of a dedicated expert?

pizza-baseIn fact, they are often a hybrid. Typically, a drafter will use a template agreement as a starting point for preparing an individual contract. The quality of the end-product will depend on both the suitability and drafting quality of the template, and on the drafter’s ability to adapt the template to the individual transaction.

Sometimes, there is little choice in the starting document, either because it has been prepared by the other side in negotiations, or because the client’s policy is to use one of its standard agreements or a well-known, third-party template such as a Brunswick collaboration agreement. There may be limited client appetite for incurring time in making changes to a source document that are not specific to the deal, or of major importance. The fastidious drafter may need to avert their gaze. What cannot be cured must be endured.

When it comes to the drafting of individual clauses, the drafter’s skills are put to the test. The drafting should be good in itself, but it should also be made consistent, where appropriate, with the content and style of the template that is being used. Careful accuracy is required for both of these tasks.

Where a tailored clause is inserted into a template agreement, the clause will itself often be ‘cut and pasted’ from another template, with or without changes. This can and does result in drafting mistakes and inconsistencies, which the drafter should correct. When IP Draughts is reviewing a draft agreement, he focuses on both the substance and the detailed drafting. It is sometimes possible to gauge how careful the drafter has been from the smallest of details.

sushiFor example, if new definitions have been inserted in the definitions clause of a template agreement, do they follow the same drafting conventions? Do they start “shall mean” when the template uses “means” or, to be really picky, do they start “Means” when the template uses “means”? Does the definition end in a full stop when the template definitions end in a semi-colon? If a semi-colon is used in the template, and the penultimate definition ends with an “and”, has the position of the “and” been moved when a new definition is added to the end of the list of definitions?

There are dozens of points similar to the above, where different templates follow different conventions, but it is appropriate to stick with the approach taken in the source document.

Spotting and correcting these points may not result in any significant improvement in the legal effect or commercial clarity of the document, but they are an indicator of how careful the drafter has been. If she can spot points like this one, she is likely also to spot more significant drafting defects.

After years of practice, the apprentice will become a true itamae, who can spot even the tiniest flaw. Examples of tiny flaws in contracts include:

  • the automated clause numbers that are in a slightly different typeface or font to the text that follows
  • the spacing between clause number and text that changes by a millimetre or two, half-way through the contract

stampSome flaws are so tiny that, even if we spot them, we may not always bother to correct them; for example, the comma that is in italic text when all the others are in normal text.

Readers, do you have pet stylistic peeves that you like to correct in contracts, or those that you regard as too trivial to correct? IP Draughts would like to hear from you.

By the way, and just getting his defence in first, IP Draughts often makes typing mistakes in this blog, which tend to be corrected after the blog has been published, rather than before. Some of his readers are good enough to point these out!

 

6 Comments

Filed under Contract drafting

6 responses to “Judging the quality of contract drafting

  1. Came across this post by searching on “coronation chicken”. Bizarre! Took me back to my old life when I reviewed, drafted and negotiated contracts for over 25 years. Agree with everything you say. (I now earn a lot less money driving cars and having much more fun!).

    • Thanks, CWASOC! I read that over 80% of people in the legal sector find their job boring (not me!) and by comparison driving cars sounds potentially interesting (though not as a Uber driver in London).
      Best wishes.

  2. Coherence sounds good to me. The three Cs. Though I try to make my contracts concise, I might be tempted to put coherence before concision in the triplet.

  3. Until reading this post, I would have said that the master virtues of contract drafting were accuracy (capturing the deal terms), clarity, and concision, and that all the other virtues fell under clarity or concision. Now I see that my list is short by at least one more, but I’m unsure what to call it. Perhaps consistency?

    • Thanks, mnemono (if I may). You could put this subject under clarity, but I would be inclined to call it drafting accuracy. Last week I reviewed a draft agreement. One of the clauses simply repeated the wording of the (well-known) template agreement on which the draft was based. But the template wording failed the test. It referred to “subsidiaries” in three places in the clause. It appeared that the original drafter had had second thoughts and added “or associated companies” next to the first instance, but failed to do so next to the second and third. This appeared to be a drafting mistake, rather than a choice. What should we do – correct the clause? Should we use a defined term such as Group Company rather than the vague wording that was there before? And if we correct that one, do we impose on ourselves an implied obligation to correct all mistakes in the template?

      • ‘Mnemo’, please, or just ‘Nemo’. The ‘subsidiaries’ example seems a straightforward example of unclarity — it raises the question whether the (template) drafter meant to express different things by using different terms. That type of drafting mistake seems not to belong to the ‘new’ category that includes italicized commas, ‘ands’ before only the penultimate item in a list, and differing amounts of space between numbers and text. What do you think of ‘typographical coherence’ as a label for the virtue, or just ‘coherence’? It would make a nice triplet: clarity, concision, and coherence.

        You open a black door when you ask if correcting one mistake in a draft or template obligates you to fix the rest. I see the danger in terms not of obligation, but of interpretation by a court: if a drafter fixes instance A, is she admitting that instances B through Z do not raise problems of the kind that moved her to fix A? I’m suppressing screams.

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