When Implementing Modern Contract Language, Pick Your Battles Carefully

A few days ago, in a comment to my post on justified text, reader j-lon had, in part, this to say:

Actually, a lot of stuff in your book is [a tough sell to people sometimes]. Much of it makes sense to me, and I agree with it. But I also spent a number of years teaching legal writing, so I kind of already had an interest in these sorts of issues.

A lot of other folks don’t, and it’s a struggle to get them to excise all the unnecessary shalls out of the contract, etc.

Any thoughts on how you approach that issue in real life? Obviously, it’s relatively easy to put that stuff into practice when creating the first draft, but it’s harder in the other direction, especially if your client doesn’t have a bottomless pit of money to spend.

So how to implement modern contract language? In the final paragraph above, j-lon alludes to the key distinction. If you’re the one drafting, then you’re at liberty to select whatever drafting usages you think appropriate. And whoever’s reviewing your drafting owes you the professional courtesy of not proposing changes unless they affect the deal.

But by the same token, if you’re the one doing the reviewing, you should stifle the impulse to make changes that render the contract more readable but don’t affect the substance.

Mind you, there are few hard-and-fast rules as to which changes affect meaning and which simply make a contract more readable.

It’s clear enough that eliminating archaisms such as WITNESSETH wouldn’t affect meaning. But what about eliminating the extraneous shall? Using shall outside of an obligation is sometimes just a distraction, as in This agreement shall be governed by the laws of the Province of Ontario—there’s no risk of the extranous shall affecting meaning. But it might be a different matter if you use shall when attempting to express a condition: as I discussed in this post and this post, it’s relatively commonplace for parties to dispute whether a given provision constitutes an obligation or a condition.

And consider redundant synonyms: Using right, title, and interest rather than interest is unlikely to result in confusion, but as I suggested in this post and this post, indemnify and hold harmless is more pernicious.

So if you request any changes to someone else’s draft, be prepared to explain why you regard those changes as meaningful.

As a general matter, I wouldn’t expect much resistance from the other side if you were to incorporate MSCD-compliant language in your drafts. That’s because my recommendations essentially work within the idiom. (Although my thoughts on materiality and representations and warranties are a bit more pioneering.)

If someone gives you pushback on your drafting usages, I suggest that you politely direct them to authorities supporting your position. Generally such resistance is prompted by habit and fear of the unknown, so any sign from you that you know what you’re doing should make them back off. If they persist without offering in their support anything other than a wish to perpetuate old habits, you’d be entitled to get a little shirty with them.

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.