How Not to Learn About Contracts

Today I saw the following tweet:

@kemitchell is one of the good guys, so I don’t think he’ll mind if I take issue with his tweet.

I suggest that expecting to understand how contracts work from reading 1,000 randomly selected contracts is like expecting to understand contract law by reading 1,000 randomly selected court opinions about contract disputes.

Your average contract is full of dysfunction. If you read 1,000 contracts, you’ll become familiar with the elements of traditional contract language, but you won’t learn what function they ostensibly serve; you won’t know why they’re lacking; and you won’t learn what to use instead.

So reading 1,000 contracts will just prime you to join the ranks of passive drafters. (Go here for more on active drafting versus passive drafting.)

To understand contracts, you have to know what to say in a contract and how to say it (and how not to say it). I’d like to think that the how-to-say-it part is relatively straightforward: read MSCD.

The what-to-say part is still a real problem, in that you have to rely on whatever commentary is available. For example, I recently purchased a book about a particular kind of transaction; it handled poorly enough the stuff that I know something about that I lost confidence in it for purposes of the stuff I know little or nothing about.

Nevertheless, I wouldn’t use actual contracts as my starting point. Instead, I’d look at commentary, with my critical faculties on high alert.

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.