[Updated October 5, 2015: This post has been quarantined, and at some point I’ll quietly take it off life support. My revised version of the sample language got caught up in the issue discussed in this post: purchase is one thing, payment of the purchase price is another, so it doesn’t make sense to say that you buy something by paying the purchase price. Serves me right for pulling that sample language out of my left ear. I’ll keep my eye open for language that better illustrates the point I was trying to make. Thanks to y’all for setting me straight.]
Over the years I’ve found that in drafting mock contracts, many of the law students I’ve taught have been inclined to treat each issue in a separate sentence.
Consider the following:
On the Closing Date, Acme shall purchase the Assets from Widgetco for the Purchase Price. Acme shall pay the Purchase Price by wire transfer of immediately available funds to the bank account specified in attachment A. Acme will not be required to purchase the Assets unless Widgetco’s legal counsel has previously delivered to Acme a legal opinion in the form of attachment B.
Now consider this:
On the Closing Date, if Widgetco’s legal counsel has previously delivered to Acme a legal opinion in the form of attachment B, Acme shall purchase the Assets from Widgetco by wire transfer of immediately available funds to the bank account specified in attachment A.
In both versions, the scenario is kind of clunky, but I threw it together to make a point. The first version uses three sentences (73 words): language of obligation, language of obligation, and language of discretion plus a conditional clause. The second version uses one sentence (54 words): language of obligation plus a conditional clause.
So instead of addressing each deal point in a separate sentence, you can often consolidate them. I’m not sure there’s any way to systematize this notion, but a sure sign of wordiness is when you see the same verb structure—for example, Acme shall pay—in consecutive sentences.
The first example, though, might make it through the various business- and legal reviews a bit more quickly (both for the client and for the other side) because each sentence is limited to one topic, separated by periods and capitalized first words, for easier skimming.
Multiply that by X number of paragraphs in the document: a “longer” contract might well be likely to get to signature sooner — which is something strongly preferred by many business clients, who tend to smile upon drafters who can make that happen for them.
(Review of the first example would get through the review process even faster if the paragraph were to be separated into multiple single-sentence paragraphs, for even-easier skimming.)
If a drafter’s client or the other side in a deal wants or insists on single-topic sentences, single-sentence paragraphs, short, simple words to enable skimming in place of close reading, or for that matter large fonts, triple spacing, or purple ink, the prudent drafter will try to oblige.
But apart from the advice to depart from a style guide’s recommendations when a client or a deal call for such departure, the guide can only recommend what’s best in the absence of special requirements otherwise.
True enough. I follow my own rules when I’m drafting a document and a very different set of rules when I’m reviewing something the client or the other side has written. I try to remind myself that life is too short to spend time making changes to someone else’s work if the changes will never matter. That doesn’t mean I WON”T make changes, even some that might be described as purely stylistic, but I try to have a good reason for it, something better than “I just don’t like that.”
There’s also the question of how to respond with the other side changes a document I’ve drafted. I think I’m fairly open-minded toward edits of my own writing, but I admit that I get angry when I receive something from the other side with a host of changes that just don’t matter. That seems to happen most often when two clients are working together and sending drafts to their own attorneys for review, rather than the two lawyers working directly together. I sometimes advise my client to tell the other side, “My lawyer refuses to review all these changes. [Or “I refuse to pay my lawyer to review all these changes.”] Go back and try again, and this time tell your lawyer to make only substantive changes that are important enough that you and I should spend our time discussing them.” I also tell clients that sort of thing can be an indication of how the overall relationship will work out. When the other party to a straight-forward confidentiality agreement bleeds all over it, I sometimes tell my client that, in my experience, when people are that hard to work with on a confidentiality agreement, they’re always going to be hard to work with.
I agree, Ken. The second version is much better. Note also that the notion of “one topic” is a bit subjective. For example, I can easily think of version B as a single sentence that encompasses a single topic — payment. At the same time, I can think of the second sentence in version A as encompassing two topics: payment must be made in immediately available funds, and payment must be made to the bank account specified in attachment A. I don’t know if there is a legal equivalent of a molecule — the smallest level of subdivision possible without losing the properties of that which is being subdivided — but, if there is, there’s no need to strive for one molecule per sentence.
Moreover, breaking things down into smaller and smaller chunks creates the need to explain how the chunks relate to each other, which again calls for more words. The last sentence in the verison A is a good example. In my mind, having just read something that says Acme has to pay the purchase price, it is jarring to run headlong without warning into a sentence that says sometimes Acme does NOThave to pay the purchase price. My natural inclination is to include some sort of signal that the third sentence is an exception or a condition to the previous sentences, something like “The preceding notwithstanding” (language which, I believe, you hate, but that I have a bit more tolerance for). All that gets taken care of nicely in your version B.
Interesting to see these different opinions. I don’t like version 2 because the last phrase about payment seems clunky and makes te sentence too long. Three concepts in one sentence s too much, for me. Also it doesn’t seem to me to be a method of purchase so much as a method of payment. Also (and I appreciate it s just an example for illustration), I am used to seeing the terms on agreement for sale and purchase separate from the terms on actions at closing.
FWIW, I find the payment part of the sentence entirely readable. Your point about distinguishing how you buy from how you pay is interesting. More generally, I cobbled this together in two minutes, so it’s more conceptual than practical.
Particularly where the contract contemplates a separate stage of closing, I think the parties promise to buy and sell on signing the contract, and on closing the seller delivers the opinion and transfers the assets and the buyer makes the payment.
Indeed. I would work better to begin it some other way, for example by saying “If Widgetco exercises the Option …” I’ll ponder and adjust accordingly.
And if payment doesn’t equal purchase, then what am I doing when I give the cashier at Tesco £1.58 for a bag of Cadbury chocolate eclairs? (This example bears no relation to real life. At all. No.)
Is “immediately available funds” really necessary? Does that language add anything? What is wrong with just saying, “Acme shall purchase the Assets from Widgetco by wire transfer to the bank account specified in attachment A”?
That’s a broader question that I’ll tackle comprehensively at some point, but not here :-(