The act of creation is associated with the act of naming. That which is nameless doesn’t fully exist.
I haven’t given a name to my approach to contract language, other than to refer to the result by, for example, brandishing the phrase “Drafting Clearer Contracts.” Similarly, I haven’t given a name to the current regime. Instead, I’ve limited myself to identifying its defining characteristics—it relies on tradition, and it’s dysfunctional.
So let me try out some new terminology on you.
Traditional drafting is passive drafting. You let others set the agenda. Because it has been “tested,” you stick with contract language that has given rise to disputes, accepting as holy writ whatever a court might have had to say about it. You stick with other language because somehow it’s “market.” More generally, you regurgitate, on faith, the language of precedent contracts and templates, because it must have worked okay in previous deals. And because you’re copying, you don’t need guidelines, you don’t need training.
Passive drafting appears to be a safe option, because you’re following the herd. But in fact it’s disastrous: you’re wasting time, you’re wasting money, you’re hurting your competitiveness, and you’re assuming no end of unnecessary risk.
I advocate active drafting. You express the deal as clearly as possible. Unless you’re given no choice, you don’t defer to whatever some court has had to say about a confusing usage. Instead, you stay out of trouble by employing only those usages that avoid unnecessary risk of confusion. That’s why active drafting is the safer option.
Active drafting is bolstered by in-depth analysis of the building blocks of contract language. Instead of leaving it up to individuals to piece together a drafting “style” from dog-eared conventional wisdom, you follow a coherent and comprehensive set of guidelines.
And because in active drafting the focus is on results, rather than appearances, embrace of active drafting goes hand-in-hand with being open to a centralized, commoditized approach to creating a customized first draft of a contract.
Obviously, passive drafting is the prevailing orthodoxy. But that shouldn’t be taken as a sign of intellectual rigor. Observe how in recent months, in this article and this article, I’ve demolished, without breaking a sweat, the prevailing orthodoxy in Canada and England regarding best efforts (Canada) and best endeavours (England).
I haven’t heard a peep from traditionalists, both with respect to those articles and more generally. That’s to be expected. Traditionalists aren’t traditionalists because passive drafting represents a coherent approach. Instead, they’re traditionalists simply because they prefer to run with the herd. Furthermore, passive drafting’s flaws are fatal—they can’t be explained away.
For all I know, passive drafting might remain the prevailing orthodoxy. That okay—contract-drafting usages aren’t subject to a popular vote, so each drafter and reviewer is at liberty to opt for those contract usages that make the most sense. Yes, pushback from traditionalists can be annoying, but I supect that it will dwindle over time, in part because A Manual of Style for Contract Drafting is increasingly in use around the world.