My article Common-Law Drafting in Civil-Law Jurisdictions has been published by Business Law Today. Go here.
There’s not much of a back story. It’s a topic that has long been on my mind. I did it as an article instead of a blog post for the usual reason: I thought it would reach a more diverse group.
How did Jan Asmus Bischoff came to be my co-author? I asked for volunteers on social media, and he was one of a handful who responded. Showing up is 80% of life! It was a pleasure working with him.
Civil-law people, I’d be pleased to hear what you think of the article.
1 thought on “My New Article “Common-Law Drafting in Civil-Law Jurisdiction””
Not a civil-law people, but I distilled the parts applicable to civil and common-law drafting thus:
Don’t recite the exchange of consideration as such when a party’s promises give that party a right to something of value in exchange. When that’s true, the existence of consideration is obvious and its recital therefore needless.
If the contract involves consideration that’s not obvious, revise it to make explicit what the consideration is; that’s a better fix than a bald legal conclusion that consideration exists.
In the rare instances where the law is that a false recital of consideration makes an otherwise unenforceable contract enforceable, do whatever you must, but consider whether you can’t achieve the same result forthrightly: ‘The parties intend this agreement to be enforceable despite lack of consideration’.
2/ Represents and warrants.
Don’t use ‘represents’ or ‘warrants’ singly or in any combination (except the verb ‘warrant’ and the noun ‘warranty’ in contracts for sales of goods). Instead, use a conditional obligation, such as ‘if any Widget breaks within a year after delivery, Widgetco shall promptly replace it’ or ‘if any Widgetco Closing Condition is unmet at Closing, Acme need not close. If Acme nevertheless closes while a Widgetco Closing Condition is unmet, [here state the consequence]’.
If you have reasons for not stating the consequences in detail, you can fall back on background law: ‘If any Widget breaks within one year of delivery, Widgetco shall give Acme the remedy the law applicable to this agreement prescribes in such a case’.
3/ Standards of effort.
Don’t use prefixed adjectives to try to create levels of required efforts — it’s a fool’s errand. Either (1) use ‘reasonable efforts’ (or, if you dare, ‘efforts’, since reasonableness is presumed and unreasonableness is not), (2) specifically describe the required efforts (‘firefighting services not to exceed $1M’), or (3) combine a vague umbrella term with a non-exhaustive subset (‘efforts including firefighting services not exceeding $1M’).