Today I received the following inquiry from Akiva Schonfeld, a lawyer at Technology Practice Group LLC:
I recently graduated from law school and accepted a position at a law firm that specializes in drafting and negotiating contracts for technology transactions. My boss recommended that I read your book, A Manual of Style for Contract Drafting.
I have found your book to be a fascinating read, but more importantly it has taught me how to properly draft a contract, and for that I am grateful.
When I began reading contracts, sentences that expressed conditions and began with the word “If …” seemed to be somewhat confusing. When a sentence began with “If” and did not have a “then” at the beginning of the matrix clause, I found myself reading the sentence twice in order to discern what the condition was and what the matrix was. Since then, I have been very careful to always begin my matrix clauses with “then”. To me, expressing a condition with an “If … then” sentence clearly indicates to the reader where the condition is and where the matrix is.
While an “If … then” structure might not be necessary in a short conditional sentence, I believe that it clarifies matters when you have either a long conditional clause or a long matrix clause. That suggests that in the interest of consistency, “then” should be used even when drafting shorter conditional sentences.
I noticed, however, that in chapter 2 of your book, when discussing conditions, you do not suggest drafting with the word “then”. I was wondering if you could shed some light on that and perhaps explain to me why you have chosen to leave out the “then”. Do you recommend I leave the “then” out? If so, why?
This inquiry reminds me why I’ll never run out of stuff to think about. Interesting issues lie hidden away, even in topics that I last considered in detail years ago.
Akiva, here are my thoughts on this:
It was cunning of you to invoke consistency, because that’s a recurring theme in MSCD. But there’s a countervailing consideration.
Using an if … then construct is automatic in computer programming, but not in prose. Consider the following:
If Investco receives a Violation Notice, it shall promptly notify Widgetco.
Adding then to the matrix clause, so that it reads then it shall promptly notify Widgetco, would add nothing, as there’s no real possibility of confusion.
It’s theoretically possible that after reading the it of the above matrix clause, the reader might wonder if that it begins a second element of the conditional clause, with the entire conditional clause reading If Investco receives a Violation Notice, it ignores that Violation Notice, and is evicted … . But that possibility, always remote, disappears once you read the words immediately after it.
And if adding then is unnecessary, all it does is add a little bit of dead weight to the sentence. The sentence is better off without it.
The same considerations apply with respect to the following sentence:
If the Borrower is in default, the Lender may accelerate the Loan.
In a longer sentence, using then might indeed eliminate some confusion. In that case, use it. But where there’s no possibility of confusion, or the likelihood of confusion is remote, I suggest that the consistency offered by always using then to begin a matrix clause is more than offset by its redundancy.
And by the way, the consistency you propose can’t be achieved for purposes of all matrix clauses, as then can be used only when the matrix clause follows the conditional clause.