Magic Words

If often find myself alluding to the “magic words” approach to drafting. Here’s what I mean:

You’re using magic words when you don’t clearly articulate in a contract a given concept but instead use legalese to grope at the intended meaning, in the hope that custom, or the courts, will fill in any gaps.

Using magic words presents two risks. The first risk is that because you’ve sidestepped having to clearly articulate the intended meaning, what you’ve said may not, in fact, make any sense. The second risk is that any gap in meaning you’ve created could result in confusion, and a court might fill the gap in meaning in ways you hadn’t intended.

Our old friend represents and warrants (see MSCD 12.285 and this November 2008 blog post) exemplies the first risk. The phrases arising out of and relating to (see MSCD 12.10) and time is of the essence (see MSCD 12.394 and this May 2006 blog post) exemplify the second risk.

Don’t use magic words. Instead, address your issue head-on.

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.