Bizarre, mainstream contract language does not work, at least not consistently. If it did, the volume of litigation would not be as great as it is. But, as we all know, for every misunderstanding that ends up in formal adjudication, there are any number of disputes that are “determined” by bizarre contract language that the parties never understood and that yields results the parties never intended.

No. Bizarre contract language does not work, except to confer competitive advantage for lawyers, create artificial demand for legal services, and maintain costs of contract drafting (as opposed to actually rendering legal advice) above market clearing levels. I suggest that these are the true motivations for blind adherence to incomprehensible prose and meaningless boilerplate.

Regards,

Mike

First, the comments about the CC license. Granted, we’ve discussed the difficulty with IP license agreements before, but for as often as the CC licenses are used by lay people to license their works, I think that they fail to achieve the goal of offering a simple set of licensing options for the general public (and lay authors) to use. The same thing is true for other public licenses such as GPL. If there were ever some heavily used agreements in drastic need of a rewrite, I’d throw those into the ring.

Second, it’s interesting for how people read contracts. In particular, I found it fascinating that the author of the post spent so much time analyzing a contract for an “inconsistency” that really amounted to differences in rights between two different parties. For as long as that post was, it’s really refuted with a single sentence: the rights and warranties received by BioMed under the Author Agreement can be, and are, different than the rights received by the reader obtaining the materials under the CC license. The source of the confusion seems to be that the Author Agreement requires the author to agree to offer the work under the CC attribution license. The way they did this was inartful, but I don’t think its in anyway unclear or ambiguous.

No one would mistake contract language for regular narrative prose, as contract language is much more limited and stylized. It seeks to regulate conduct, so it has no voice, it’s very formal, it exhibits a limited range of verb use, and it chases down every loose end. In some respects it’s analogous to software code.

But those differences are subtle. The contrast between regular narrative prose and contract language widens drastically when you add in the usages associated with the train wreck that is mainstream contract drafting. Browsing through past posts on this blog should give you a sense of that.

I think the appendix to my book gives one a good sense of the cumulative effect of the differences between traditional contract language and the alternative. It contains three versions of a contract that’s representative of mainstream drafting: the “before” version, the “before” version annoted with a couple of hundred footnotes to show its shortcomings, and the “after” version, as redrafted by me. No one would mistake the “after” version for Hemingway, but it bears little resemblance to the “before” version. I’m sorry that I don’t have those materials on my site.

By the way, I don’t refer to “plain English,” as that can be understood as applying only to the simplified language of consumer contracts. Instead, I refer to “standard English.”

Ken