Inspired by this morning’s post about not making contract language too informal, here are my 11 commandments for drafting business contracts:
- Contract language should be clear.
- Contract language should be only as complicated as it needs to be.
- Contract language should be precise.
- Contract language should omit redundancy.
- Contract language shouldn’t say the same thing twice.
- Contract language should be consistent in expression.
- A contract should express the transaction in an orderly and accessible way.
- Contract language shouldn’t seek to explain, tell a story, or persuade.
- Contract language should be restrained in attempting to preempt judicial discretion.
- Contract language shouldn’t have to be interpreted.
- Contract language shouldn’t be too informal.
You’ll have to provide your own tablet!
5 thoughts on “The Ten—Uh, 11—Commandments of Drafting Business Contracts”
Contract language should omit redundancy.
Contract language shouldn’t say the same thing twice.
He means different things, but it is tough to jam that difference into something as short as a commandment. For the first one, his example is legalistic doublets and lists of synonyms. For the second one, he means language with the same meaning in different parts of the same agreement.
Point well taken. Needless repetition is a subset of redundancy, which is a very broad umbrella term for every kind of excess, superfluity, and surplus, including for example rhetorical emphasis.
Knocking out number 5 would get the list down to the classic 10, and get rid of the implication that twice is bad but thrice okay. (Psycho Killer: Say something once, why say it again?)
My tablet would have three commandments, six words total:
1/ Be accurate. (Mirror the deal.)
2/ Be clear. (No needless ambiguity, muddiness, polysemy, unclarity, or vagueness, where “needless” applies to each following noun.)
3/ Be concise. (Be as brief as accuracy and clarity allow: no redundancy in the broadest sense, no sesquipedality. Have the lowest word count and character count consistent with doing the job).
Then would come the notation: THIS SPACE INTENTIONALLY BLANK. YOUR AD HERE, CONTACT A. WRIGHT BURKE, M.PHIL.
How I love Churchill’s observation that “short words are best, and the old words, when short, are best of all.” All monosyllables!
Mel Brooks says to go for 15!
“Contract language shouldn’t seek to explain, tell a story, or persuade” – I agree, except in the recitals where you really do want to tell the story.