You might have noticed that with the fourth edition of MSCD in production, I’ve been pondering where things stand and what comes next.
As part of that I’ve made a point of having slightly awkward conversations with some in-house lawyers who are friends of MSCD. I look at their templates, point out the inevitable shortcomings, then see what they have to say.
Here’s my paraphrased version of one reaction:
You recommend using shall for imposing a duty on a party that’s the subject of a sentence and using will for language of policy. But at our company lots of people work with contracts, and many of them won’t have the semantic acuity to figure out whether to use shall or will in a given sentence. Using will for both contexts makes life simpler. And in twenty years we haven’t gotten into a dispute over use of shall versus will.
The same goes for the distinction between obligations and conditions. I’ve never encountered a situation where mishandling that has created a problem for us.
That’s an understandable reaction. Here’s what I’d say in response:
Yes, I recommend using shall for obligations imposed on the subject of the sentence and using will for language of policy relating to a contingent future event. One reason is that only in a narrow sense (You will eat your spinach!) is will used in everyday English to express that which is mandatory, so using will in contracts to express obligations couldn’t be justified as being “plain English.” And using shall for obligations is a safe choice. But the broader reason is that using different verb structures for different meanings makes it easier to select from among those meanings when drafting a contract. And conversely, using the same verb structures for different meanings makes it harder to distinguish between those meanings, and it can encourage a broader heedlessness when it comes to the categories of contract language.
Using will for both language of obligation and language of policy is certainly easier than distinguishing between the two contexts. But if your drafters can’t distinguish between language of obligation and language of policy, it’s unlikely they’ll be able to be able to distinguish between obligations and conditions either, or be able to understand the categories of contract language generally. I suggest that matters.
For one thing, if you jumble the categories of contract language, you make contracts more awkward and harder to read. Think of how overuse of shall distances traditional contract language from standard English. And confusing verb structures can lead to disputes, mostly over whether something is an obligation or a condition.
If you haven’t experienced litigation over verb structures in a contract, that doesn’t mean you won’t. And absence of litigation doesn’t mean that awkward verb structures in your company’s contracts haven’t caused confusion and disputes that were resolved short of litigation. Also at stake is the speed with which you get deals done.
Bear in mind that we’re talking here about just one topic, albeit an important one: the categories of contract language. If you’re willing to tolerate confusion in how you handle the categories of contract language, it’s a safe bet that you’ll tolerate confusion elsewhere. It takes a toll cumulatively and increases your risk.
Ideally, one would make the difficult nature of contract prose more manageable by engaging specialists (see this post) and by automating (see this article about my automated confidentiality agreement). That would limit your need to have contracts drafted or revised by people who don’t have the neccessary chops.
But more generally, I’m unwilling to assume that many people who work with contracts can’t handle my guidelines. It’s still early days in terms of training in contract-drafting usages. My shorter style guide (Drafting Clearer Contracts, to come in 2018) and an online certification program (to come sometime) would help. I’m game to wage this battle. Are you?
[When I first published this post, I used a toned-down vulgarism in the title, because that’s how it would have expressed it conversationally. But it didn’t look good, so I changed it.]
2 thoughts on “Does this Stuff Matter?”
I think that the key part of your post are these two sentences:
“If you’re willing to tolerate confusion in how you handle the categories of contract language, it’s a safe bet that you’ll tolerate confusion elsewhere. It takes a toll cumulatively and increases your risk.”
The reason that they are key is that they implicitly recognize that the issue is one of risk tolerance. My risk tolerance for confusion in contracts is greater than zero. I balance that risk against other costs, benefits, and risks.
What I think you left implicit is that the risk balancing is markedly different when you are (a) reviewing your own templates and (b) when you are negotiating a deal. Eliminating some risk of confusion from specific language in your own template is much less costly than is eliminating that same risk for that same language if your counter-party proposes that language. Many of the arguments about why we tolerate ambiguity, imprecision, and confusion in negotiated contracts simply does not apply to our own templates.
This post concerns only templates. Reviewing the other guy’s contracts involves different considerations, ones discussed in this post: https://www.adamsdrafting.com/on-reviewing-a-contract/