Contract layout is a function of how you position blocks of text on the page and how you enumerate them. In MSCD I recommend that you use for your contract layout what I call, unimaginatively enough, the MSCD enumeration scheme. It comes in “articles” and “sections” versions, the only difference between the two being whether your contract groups sections into articles. Go here to see an image of MSCD sample 3,which shows the “articles” version; this sample contract uses the “sections” version.
While pondering the layout of Australian contracts (see this blog post), I decided that I should revisit the MSCD enumeration scheme to see whether, four years on, I could articulate more clearly why I’m sticking with it. (Some prodding from Chris Lemens here and here helped too.) So here goes.
A Contract Is Different from an Outline
Let’s start with a general proposition: a contract isn’t an outline, and it doesn’t make sense to organize contract text as if it were.
You know outlines. Each entry is enumerated, using a hanging indent rather than a first-line indent, and the enumeration scheme is staggered, with the entries working their way to the right as you move down the enumeration scheme. This arrangement—which MSCD refers to as a staggered hanging-indent format—helps to convey that each level is a subset of the level above it.
As such, outlines are perfect for setting out taxonomies—grouping items into hierarchies. But they’re not necessarily useful for organizing content. In particular, they’re not ideal as a way to organize the building blocks of contract text—sections, subsections, and tabulated enumerated clauses—although drafters routinely use staggered first-line indents to serve that function. In this post I’ll explain why, and will explain other feature of the MSCD enumeration scheme.
For purposes of a contract that contains only sections, I’d opt for first-line indenting rather than hanging indents. (First-line indenting is a standard way to mark a new paragraph.)
I have nothing against hanging indents generally—after all, look at how MSCD’s paragraphs are numbered. Using hanging indents would isolate section numbers on the margin, thereby making them stand out more. But as I explain below, I think that using first-line indenting for both sections and subsections better expresses their relationship; it would be counterproductive to switch formats depending on whether a contract contains subsections. I also explain below that using first-line indenting for sections and subsections and hanging indents for tabulated enumerated clauses is more logical that using hanging indents across the board.
That being the case, doing without the added prominence afforded by hanging indents seems a small price to pay. I find section numbers in the MSCD scheme plenty visible.
Sections are invariably numbered using the 1. or 1.1 hierarchy, depending on whether the sections are grouped into articles. No purpose is served by adding an extra period (1.1.) or adding a zero after the period when enumerating the first ten sections of an article (1.01).
The MSCD scheme doesn’t include the word Section before section enumeration, as doing so wouldn’t convey anything meaningful. In the U.S., anyone with a basic familiarity with contracts knows that the primary vessel for contract content is referred to as a section. Anyone who is unaware of that would deduce as much from internal cross-references to sections.
As Chris Lemens points out in one of his comments, including the word Section in automated section enumeration would result in the word appearing in automated cross-references to sections, thereby sparing the drafter from having to type the word. But the economy that offers isn’t enough to offset the annoyance of having Section appear, pointlessly, at the beginning of each section.
And consistent with The Chicago Manual of Style, MSCD recommends that in cross-references you use a lowercase s in section. My understanding is that if you use Section with a capital S in automated section enumeration, Word wouldn’t permit you to opt for a lowercase s in section for purposes of automated cross-references.
The MSCD scheme puts section enumeration one tab-setting in. As a matter of general typography, putting the enumeration on the left margin would look odd in paragraphs that otherwise use first-line indenting.
In the MSCD scheme, section headings are stated in bold, to make them stand out a bit. I find the alternatives unappealing: Underlining is a typewriter hangover. Using all capitals would be too strident. Adding italics to bold would be an unnecessary embellishment. Using color, or a different typeface, would be to indulge in “bling” (a notion I discussed in this blog post).
Articles are different from sections, in that they don’t in themselves offer any content. Instead, they consist of collections of sections.
That distinction is a good reason to call collections of sections “articles.” If you were to call them “sections,” a reference to section 1 of a contract could be a reference to a single section or a group of sections. (For more on this distinction, see this blog post.)
Article Headings and Enumeration
To distinguish article headings from section headings, and to avoid creating heading clutter on the left side of the page, I center article headings. Does that force the reader to have to work harder? Perhaps—if article headings were on the left margin, the reader could see all headings by skimming down the left margin. But I’m comfortable that the modest benefits of centering the article heading outweigh the modest drawbacks, at least modestly so.
To distinguish article headings from section text, I prefer to keep them relatively compact. To that end, I keep the article enumeration on one line and the rest of the heading—the name given the article—on the line immediately below, using a manual line break (Shift + Enter). To the same end, I’ll break longer article names into two lines.
I use the word Article in article headings. Chris Lemens suggests that because I don’t use the word section in section headings, I’m being inconsistent. I guess I am, but for good reason. For one thing, since I put the enumeration on its own line, prefacing it with the word Article doesn’t waste space. And given that not all drafters use the word “article” to refer to a collection of sections, putting the word Article in the heading tells the reader up-front that that’s what you’re doing.
The MSCD scheme uses Arabic numerals for articles. Roman numerals are harder to read than Arabic numerals and for the most part take up more space; let the Superbowl have them.
I use all capitals to state in the heading the article name, and recently someone gently chided me for doing so. But I’m not inclined to dabble in bling by using small caps, or a bigger point size, for article headings. Given my otherwise austere document design, it would look out of place.
Subsections Compared with Sections
What’s the best way to distinguish sections and subsections?
With staggered hanging indents, sections constitute the first level and subsections the second level. I don’t have a problem with each of the subsections in a given section constituting a subset of that section.
But what is problematic when you use staggered hanging indents is how the text of one section appears to relate to the text of the subsections of another section. The convention used to distinguish them—another tab setting of indenting—sends an inappropriate signal. It suggests that subsections are somehow subservient to sections, whereas they’re just a convenient way of subdividing text.
In other words, if a section is a pie, subsections are a pie cut into slices. So when distinguishing sections from subsections, I want to use a convention that is as understated as the marks that a knife makes in a pie. In that regard, staggered first-line indenting, with subsection designations an additional tab setting further in, fits the bill better than staggered hanging indenting.
And as a bonus, staggered first-line indenting takes advantage of the more economical use of space that first-line indenting offers.
When enumerating subsections, drafters have to address two issues.
One issue is where to place the first subsection designation. If you’re using staggered hanging indents, you won’t have to worry about that. But if, like me, you’re using staggered first-line indents, you could put the first subsection designation after the section heading, on the same line, with subsection text following immediately after, or you could put it below the heading. I prefer the former option. Leaving the section heading marooned on its own line breaks up the text unnecessarily, wasting space and making the reader work harder.
Does putting the first subsection designation after the heading make it harder to see? I don’t think that represents any hardship—once you see that the section is divided into subsections, it would be evident that the first block of text is the first subsection, whether or not the first subsection designation leaps out at you.
The second issue is what enumeration hierarchy to use.
For enumerating subsections, drafters have a choice between using the (a) hierarchy or using the multiple-numeration system, with subsections of section 1 using 1.1, 1.2, and so on.
Using the multiple-numeration system to enumerate subsections has two shortcomings. First, it’s potentially confusing: “section 1.1” could refer to the first section of article 1 or the first subsection of section 1.
Second, it would look odd to use the multiple-numeration system if you put the subsection designation after the heading, as I do.
And third, as I explain below, I can’t countenance using the multiple-numeration system for tabulated enumerated clauses, and it would look a little odd to start with the 1. and 1.1 hierarchies (or the 1., 1.1, and 1.1.1 hierarchies, in a contract divided into articles) and then shift to the (1) hierarchy for first-level tabulated enumerated clauses.
I’m aware that because I don’t use the multiple-numeration system, you might find yourself on a page without section numbers and wonder what sections the subsections, or enumerated clauses, on that page are part of. Well, tradeoffs are part of life, and I rate that a minor nuisance compared with the problems that afflict using the multiple-numeration system for contracts. And you can mitigate that issue by grouping your sections into articles if they start getting too long; that would allow you to turn subsections into sections.
The MSCD enumerated scheme doesn’t provided for subsection headings—I think they add clutter and detract from section headings. I haven’t missed them. Keep you sections a manageable length and you likely won’t miss them either.
Tabulated Enumerated Clauses Compared with Sections and Subsections
Let’s assume that you’re using staggered hanging indents for your sections and subsections. It follows that it would make sense to use hanging indents, staggered further to the right, for your first level of tabulated enumerated clauses and any subsequent level, right?
No—using staggered hanging indents for tabulated enumerated clauses doesn’t reflect how they relate to sections and subsections.
Sections and subsections are used to group entire sentences, by topic, into manageable blocks of text. By contrast, a set of tabulated enumerated clauses and the phrase introducing that set together constitute a single sentence. (In MSCD sample 3, which I link to above, section 1.1(a) contains five first-level tabulated enumerated clauses; section 1.2 contains three.) So tabulated enumerated clauses serve an entirely different function from sections and subsections—it’s illogical to join them in the same taxonomy.
Instead, tabulated enumerated clauses are analogous to bullet points. Use hanging indents, but don’t make them subservient to sections and subsections—put flush left the enumeration for first-level tabulated enumerated clauses. I can do that because I use first-line indenting for sections and subsections. That’s another advantage of using first-line indenting for sections and subsections.
Usually, bullet points aren’t put flush left; they’re half a tab setting further in, like the bullet points in this document (a unanimous written consent, in Word). But I decided that doing that with the enumeration for first-level tabulated enumerated clauses would make the MSCD enumeration scheme unduly fussy.
Commingled Enumeration and Segregated Enumeration
It’s commonplace for drafters to use subsection enumeration for first-level tabulated enumerated clauses, too, in sections that don’t feature subsections. (I call this “commingled enumeration.” Actually, I just made the term up. What do you think?)
In other words, drafters who use the multiple-numeration system might use “4.1” to designate a subsection or, if the section doesn’t feature subsections, the first in a set of tabulated enumerated clauses in section 4. And other drafters might use “(a)” in those contexts. In a section with subsections, those drafters would use different enumeration for tabulated enumerated clauses.
Because tabulated enumerated clauses are distinct from sections and subsections, commingled enumeration is unhelpful. That’s why the MSCD enumeration scheme reserves the (a) hierarchy for subsections and uses the (1), (A), and (iii) hierarchies for first-, second-, and third-level enumerated clauses. (I aim never to use the third level, as that’s a sign that you’re getting unduly intricate.) I refer to this as “segregated enumeration.” It has the added benefit of facilitating automated enumeration.
Enumerating Tabulated Enumerated Clauses
For three reasons, I wouldn’t want to use the multiple-numeration system for tabulated enumerated clauses. First, the multiple-numeration system is suited to conveying taxonomies and emphasizes that each component is distinct from others in that hierarchy and is subsumed within the next level up in the hierarchy. But a set of first-level tabulated enumerated clauses simply constitute parts of a sentence within a section or subsection; the most important relationship is between the tabulated enumerated clauses, not between any given tabulated enumerated clauses and the section or subsection that it happens to fall in.
Second, you couldn’t use the multiple-numeration system for integrated enumerated clauses, and it would be bizarre to switch enumeration depending on whether your enumerated clauses are tabulated or integrated.
Third, I’m precluded from using the multiple-numeration system by my aversion to commingled enumeration. In a contract without articles, I’d have to use the 1.1.1 hierarchy for first-level tabulated enumerated clauses, even in sections without subsections. That would look odd.
And fourth, using the multiple-numeration system for second-level tabulated-enumerated clauses (for example, “18.104.22.168.3” in a contract divided into articles) would be cumbersome and could well interfere with your tab settings.
Headings for Tabulated Enumerated Clauses
A heading for part of a sentence? I don’t think so—it would add too much clutter.
So that’s why I remain satisfied with the MSCD enumeration scheme and will keep using it.
You don’t like the MSCD scheme? Give it a change. Remember that when it comes to the look of a document, people like what they’re used to, no matter how crappy.