I received the following question from a reader:
When working with a contract that (1) comes from the other side, (2) is not game for complete redrafting, and (3) is in legalese, not English, do you suggest trying to adopt the conventions you find there (if there are any), or do you think it’s clearer to write the changes in English without regard to the mess around them?
So you’ve reviewed a contract and you want to add some language to reflect adjustments to the deal and to fix some problems. (Sensibly, you don’t want to waste your time or drive the other side insane with rage, so you’re not going to fix stuff that’s awkward but doesn’t affect the deal or pose a risk of confusion.)
But the draft you reviewed expresses the deal in traditional contract legalese, with all the shortcomings that entails. In formulating your new language, do you match the language used in the contract, or do you use clearer conventions?
I say use clear language. (In my world, that means following the guidelines in MSCD.)
That’s because traditional contract legalese is a mess. It’s marked by the absence of conventions (see for example the chaotic verb structures) and misbegotten conventions (see for example the ostensible distinction between best efforts and reasonable efforts). It follows that anything that apes traditional contract legalese will necessarily be a mess too.
When adding clearer language to legalese, make sure that your usages don’t conflict with other usages in the contract. For example, if you add a provision that uses indemnify and elsewhere the contract uses indemnify and hold harmless, that could conceivably tempt a judge to decide that the parties had somehow intended two different standards. When you see such inconsistencies, make conforming changes elsewhere in the contract so that your usage prevails. But if the distinction between usages is trivial, you might want to score diplomacy points by going with the other side’s usage.
Don’t get carried away in seeking consistency. For example, just because in your added provisions you use shall only to impose an obligation on a party that’s the subject of a sentence, that’s not reason enough to overhaul verb structures throughout the contract. But in any review I’d be on the lookout for problematic verb structures, for example conditions that use shall and so would likely be interpreted as obligations.
Your new language should use any defined terms defined elsewhere; if they’re problematic, fix them throughout the draft. And if you’re defining new terms, observe the conventions used elsewhere in the contact, unless they’re sufficiently problematic that you need to change them.
As regards the look of the document, normally you’d observe the conventions used in the draft. For example, I wouldn’t recommend using a different font for your added language! But if the enumeration scheme particularly shambolic, I wouldn’t hesitate to use my own scheme for added provisions.