Techniques for drafting contracts – we all use them, whether we consciously follow a formal guide such as the Manual of Style for Contract Drafting, or take an ad hoc approach based on our previous experience. Older readers in the UK, and perhaps a larger number of readers outside the UK, tend to apply rules of grammar and other writing techniques that they were taught at school. Sometimes those techniques are now considered out of date or discredited. Most of us have moved on from rigid obedience to rules (if we were even taught them) such as never start a sentence with a conjunction, or never split an infinitive.
IP Draughts finds that some techniques keep coming back to him when drafting contracts. A particularly valuable technique is to critically review the order of the words in the sentence. An example that IP Draughts uses when teaching is the following:
Being ignorant of the law, the attorney argued that his client should receive a light sentence.
The phrase “being ignorant of the law” is in a weak position in the sentence. If it is put immediately after “attorney” or “client”, the meaning becomes clear and unambiguous.
Consider the following example from a consultancy services agreement:
MegaCorp shall provide all access to documentation in its possession and to personnel under its control where required by Consultant within 7 days and if notified in writing to Megacorp.
Several techniques can be used to improve the clarity of this sentence, but for now let’s focus mainly on word order.
Within 7 days of the Consultant’s written request, MegaCorp shall provide access to (a) documentation in its possession and (b) personnel under its control.
Alternatively, the 7-day deadline point could be moved to after “access” or could be addressed in a second sentence. It is clearly in the wrong place in the original version, as it suggests that the obligation to provide access only applies where the Consultant needs access within 7 days. If the Consultant’s needs are less urgent, the obligation will not apply.
In a full review of the wording, many other points of drafting and substance might need to be addressed, including:
- Who is the access to be given to – employees of the Consultant?
- Confidentiality obligations
- What does “access” mean in practice? Free rein to rummage in the company’s files, or something more controlled?
- Are there any limits on access to documentation? Eg is access to pricing information on the Consultant’s competitors allowed?
- Are there any limits on access to personnel, eg if they are busy or on holiday?
- Cost implications
The careful drafter will be thinking about all of these points and more, even if some of them are quickly dismissed in the context of the deal.
Applying a scalpel to the sentence, and moving bits around, is often a good way of removing potential ambiguity, cutting out redundant wording, and improving clarity generally.