Dale Carnegie, an early-twentieth-century U.S. writer and lecturer on self-improvement, famously said, “Tell the audience what you’re going to say, say it; then tell them what you’ve said.”
Whatever the merits of that gem, it doesn’t apply to contracts. In particular, don’t say what you’re going to say, as in this example:
This agreement states the terms under which the Consultant shall perform and deliver Services.
If you apply the has a duty test (discussed in this post) to the shall in that sentence, it doesn’t sound like nonsense. But shall doesn’t work, because that sentence doesn’t create an obligation. And no other verb structure seems to fit, because this is a sentence without a function.
That’s because instead of saying what you’re going to say, you should just say it. In this case, simply say what services the consulting is required to perform.
8 thoughts on “Some Dale Carnegie Advice Contract Drafters Shouldn’t Follow”
There’s an easy fix for this. It should read: “For the avoidance of doubt, this agreement states the terms under which the Consultant shall perform and deliver Services.”
Or “Pursuant to this Agreement, Consultant shall perform and deliver the Services to Company.”
As they say on Twitter, Delete your account!
Great post! What are your thoughts on Recitals then since most of them usually just say what the contract is going to say?
That was going to be my question. In particular, for consumer contracts, the first words should tell the reader what the document is.
Consumer contracts might require more hand-holding than business contracts.
I keep trying to reduce the details in recitals because they usually just say what is said later in the actual agreement part of the agreement. I really don’t think one needs to state in an amendment that the parties intend to amend the agreement as provided in this amendment. Just go ahead and amend it (after the lead in clause: “The parties agree as follows:”) (yes, I have removed all the “consideration” wording per Ken’s recommendations).
I had a teacher whose version was, ‘Tell the class what you’re going to say, say it; then tell them what you’ve said. At that point, some will get it’.–Wright