Advice to a Non-Native English Speaker (Including Links to My Analysis of Different Boilerplate Provisions)

Here’s the text of an email I just sent someone who attended one of my recent European seminars:

I’m pleased that you found the seminar worthwhile.

So you’re looking for further training that will allow you to get more comfortable with contracts drafted in English. You also want to understand better the sorts of provisions that are standard in commercial contracts.

The Building Blocks of Contract Language

The first part of your request is easy. You’ve already had all the training you need—my seminar! Now comes the hard part—reading, and rereading, and rereading A Manual of Style for Contract Drafting, in small doses. Any further training I provide on the building blocks of contract language would be rather tedious, as I’d just be paraphrasing additional portions of the book.

Furthermore, MSCD is the only game in town; for now you can safely ignore all other commentary on the building blocks of contract language. That doesn’t mean I’m perfect! I’m sure that I’ll revise in the fourth edition some of the newer parts of the third edition. But I’ve been working on the fundamentals for around fifteen years, so I’ve revisited them numerous times, and I’ve debated them repeatedly, so I know my guidelines make sense. Furthermore, MSCD is an accepted authority. (See this post on the importance of reputation.) Whatever the marginal benefits of rummaging around in other commentary (what there is of it), they would be more than offset by the cognitive dissonance that would result.

Remember that contract language is more limited and stylized than other kinds of writing, so it should be easier to get a handle on it. For example, my “categories of contract language” framework sets out your choices regarding verb structures. That’s the good news. The bad news is that a lot is at stake, so you have to get it right.

Commercial Boilerplate

Regarding understanding general commercial provisions, I wish I could point you to a single source that provides analysis that’s reliable and to-the-point. Unfortunately, there isn’t one. Sure, there’s no end of commentators, but it’s hard to identify in the cacophony the guidance that makes sense. And the useful analysis tends to require real study. Finally, the contract language offered by commentators ranges from suboptimal to atrocious.

So all I can offer is my stuff, but there’s quite a bit of it lurking in MSCD and on the blog. Until I get around to recategorizing my 1,300 blog posts, here’s what comes to mind:

  • Exclusion of consequential damages: See this post, this post, and, in connection with confidentiality agreements, this post.
  • “Force majeure” provisions: See this post and this post.
  • Severability provisions: See this post and this post and, less essentially, this post from yesterday.
  • “No assignment” provisions: See this post.
  • The “successors and assigns” provision: See this post and this post.
  • “Entire agreement” provisions: See this post.
  • Warranties and excluding them: See MSCD 13.732, MSCD 13.161, and this post.
  • Indemnification provisions: See MSCD 13.302; someday I’ll make public my model indemnification language.
  • U.S boilerplate outside the U.S.: See this post.

But in addition to those resources, there’s another vital resource: Koncision’s confidentiality-agreement template! You can learn an enormous amount by completing the questionnaire, consulting the annotations, and going over the language in the contract that you create. As I explain in this post, I think that a document-assembly questionnaire beats a book as a way to learn about boilerplate. And there’s nothing remotely comparable to Koncision’s template. Of course, it covers issues relating to confidentiality, but it also covers all the basic boilerplate—notices provisions, governing-law provisions, arbitration provisions, and so on. You can subscribe for free by going here and submitting your email address. Someone will get back to you with a password in a day or two.

Koncision’s language is of course protected by copyright, but currently I’m OK with you and others taking bits for your templates. If anyone wants to copy substantial parts, I ask that they pay for a license, as spelled out here. [link no longer available]

I hope this is of use.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.