It 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?
In 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.
For 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
Some 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!