The Meaning of “Draft”

How come one drafts a contact but writes a letter?

The verb draft has a number of possible meanings, but here’s what the Oxford English Dictionary—the bound version, not the online version—gives as the one definition relating to preparing documents: “To make a draft or rough copy of (a document); to draw up in preliminary form, which may be afterwards perfected.”

That’s OK as far as it goes, but it omits important nuances.

For one thing, no one says that they’re drafting a novel. And if the first version of a contract that I create is the final version—in other words, if I don’t go though any preliminary versions—I’d still say that I had drafted that contract.

Here’s how A Dictionary of Modern Legal Usage explains that distinction:

Drafting is a specific type of legal writing dealing with legislation, instruments, or other legal documents that are to be construed by others. Statutes, rules, regulations, contracts and wills are examples of legal drafting.

But why would the act of writing a particular kind of document come to be accorded a word of its own in this manner? In particular, there’s nothing to link the word draft to the fact that such documents are to be construed by others. I’ll hazard a guess:

Let’s start by considering the noun draft. OED defines it as “A preliminary sketch or rough form of a writing or document, from which the final or fair copy is made.” The noun is in broader use than the verb, in that it can apply to any kind of writing—if you’ve written a preliminary version of a novel, you’d probably refer to it as a draft.

For purposes of understanding how the verb draft came to be associated with statutes, rules, regulations, contracts, and wills, perhaps what distinguishes them is not the fact that they’re construed by others, or that they regulate conduct. Perhaps what matters is the process by which such documents have traditionally been written. More than other kinds of writing, they tend to be created collaboratively, so drafts of such documents are circulated more broadly, and publicly, than drafts of more private kinds of writing. That being the case, it shouldn’t come as a surprise that the noun draft should have become attached to the process of writing such documents.

Whatever the explanation, I think it appropriate that a different verb be applied to a this specialized kind of writing. It follows that I’m not crazy about extending the verb draft to other kinds of writing. For example, I recommend you refer to writing, not drafting, a memo or a judicial opinion.

By the way, the verb draft has another meaning relating to documents, in that drafting also refers to creating architectural drawings. My Google Alerts tell me that there’s an Adams Drafting Service in Thayer, Kansas. (Hi guys!) I suspect that they do architectural drawings rather than, say, poring over the entrails of contract language.

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.