Unsure whether you should be paying someone at the law firm of Preen & Strut $600 an hour to draft your contracts? Or uncertain whether a member of your in-house legal staff is doing a good job with your templates? Well, take the following quiz and all will be revealed! (In the quiz, the phrase “your guy” is gender-neutral.)
A draft circulated by the other side to a deal seek to impose on your company an obligation to use “all reasonable efforts” to do something. You guy does which of the following to that phrase:
- Deletes the word “all,” to make the obligation “weaker,” according to your guy.
- Adds the word “commercially,” to make the standard subjective rather than objective, according to your guy.
- Deletes the word “all,” in case some freak on the other side thinks that it has some significance.
Your guy uses the phrase “represents and warrants” to introduce statements of fact. You ask them why, and they say the following:
- Because they’re magic words, of course! It’s all explained in that seventeenth-century English case, Chandelor v. Lopus! To be able to bring an action for misrepresentation of facts, the other guy has to “represent” as to those facts. And to be able to bring an action for breach of warranty … [drones on]
- Uh … [starts to rearrange desk furniture].
- Okay, you got me! It’s pointless to use both words. But here in the U.S. of A., it won’t get us into trouble. So just let me do this deal, and then we’ll get around to contract-drafting purity.
Your guy hands you a draft with the recitals heading “WITNESSETH.” You ask them about it, and they respond as follows:
- Oh, sorry, I forgot to put a space between each letter, with the letters underlined, but not the spaces! That’s class!
- I am drafting robot, model Regurgitron X4BZ. I am slave to precedent. I cannot deviate from precedent. Bzzzt. Whirr. Clunk.
- Yes, it’s dopey, but since you want this deal done yesterday on a shoestring budget, I assumed that you didn’t want us spending our time and your money creating a thing of beauty.
Your guy hands you a draft that contains the following sentence: “Jones shall submit any Dispute Notice no later than five Business Days after delivery of the related invoice.” You ask them whether it’s intended to be a condition or an obligation. They say the following:
- Well, it has “shall” in it, so it must be OK!
- [Pauses.] Hey, how about them [insert name of sports team]?
- Hmm, I guess we should make it clearer that it’s a condition.
You point out to your guy that a provision in the draft contract he gave you exhibits syntactic ambiguity. They respond as follows:
- That’s OK—that gives us some wiggle room down the road.
- That’s OK—they drafted it, so the ambiguity will be construed against them.
- OK, let’s fix it.
After your guy tells you that he just finished drafting his 95th NDA of the year, you ask them whether it wouldn’t be simpler to use document assembly to automate the process. They say the following:
- Really? I think you lose that personal touch when you rely too much on technology.
- I agree! I could create some nifty Word macros!
- At last! The cloud version of ContractExpress! A customized version of Koncision’s confidentiality-agreement template! Bada bing bada boom!
You hand your guy a copy of A Manual of Style for Contract Drafting. What do they say?
- I’ve been doing this for twenty-five years, and I’m not going to let … harrumph … grunt … .
- These new-fangled ideas are all well and good, but, you see, traditional language has been tested by the courts … [adjusts bow tie].
- I’m not crazy about learning new tricks, but … let me think about it.
OK! Note the number preceding each of your answers, and add them up. What does the total signify? See below:
7: Terminate your guy with extreme prejudice. So what if it’s Christmas Eve!
8 to 20: Your guy needs contract-drafting boot camp toot sweet. Or assign them a task where they can’t do any harm—like decorating the Christmas tree.
21: Congratulations! You guy may not be a black-belt master of clear contract language, but they’re astute and pragmatic. Give your guy a hefty holiday bonus!