3.1 General principles of contract drafting
Main idea: A contract drafter should write with only a few principles in mind:
· Contracts should be written in plain language, as clear and as simple as possible
· Be accurate
· Be consistent
· Ambiguity must be avoided
· Vague terms should be used consciously
Plain English: simple and clear. A good contract is simple, clear and accurate, and avoids ambiguity by only including important and necessary subjects. Always use plain language when drafting contracts: a businessman should be able to understand the text. The legal aspects of a contract should be limited to what is expressed, not how it is expressed (No tricks!). Old fashioned language makes a contract harder to read and will not serve the interests of the parties. Using Latin in contract drafting is not archaic as such, but it is best to avoid odd, unnatural terms and phrases that could be stated in more straightforward language.
Plain language: Simple, straightforward words and phrases of the kind used in a day-to-day context. It is language stripped of archaic ‘legalese’ and fashionable business jargon.
For clear drafting, DON`T USE:
- …it’s…
- …ain’t…
- …won’t…
- …can’t…
- Purchaser should not…owe Seller…
Accuracy. A contract drafter should distinguish legal, factual, accounting, procedural and legal-procedural concepts from each other, as well as the subtleties in negotiations. A skilled drafter uses accurate, straightforward language to increase clarity and avoid ambiguities, gaps and deliberately vague language that could leave them vulnerable later on in a business relationship.
A good drafter protects their interests by determining what is important and necessary in their business relationship. It is important to understand where in the business the real risks or avoidable exposures are, and where the desired performance by a party is not self-evident. Additionally, a drafter must consider whether providing for it is necessary; in other words, who carries the burden of any true uncertainty? Often, deleting words or clauses reveals what really matters.