A Ken Adams, Mark Anderson Smackdown: Using “Article” for a Group of Sections

In this recent post on IP Draughts, Mark Anderson said the following:

Mostly, though, [contract format] is a mixture of logic and sentiment. Logic, in the sense that, in well-drafted contracts, the format will be helpful in finding the information that the reader requires, eg in the order of clauses, the use of headings and numbering, and so on. Sentiment, in the sense that people like to follow a familiar pattern.

A classic example of the sentimental approach is the use of Articles and Sections in US contracts, often with the Article numbers written in Roman numerals and the Section numbers in Arabic numerals. By contrast, the UK approach is to have a single category – Clauses – using Arabic numerals throughout. A possible analogy is that the UK approach on this issue is like the design of Danish furniture, while the US approach is more ornate, Rococo perhaps.

Them’s fightin’ words! So I followed up with Mark; below is our exchange:

Ken: Regarding “articles” and “sections”: If a contract is long enough, can be helpful to shift from having sections 1 through 50 to dividing those fifty sections into groups of sections, with the sections being numbered 1.1, 1.2, etc., 2.1, 2.2, etc. I assume you’re on board with that. I think it’s helpful to use the word “articles” for a group of sections, rather than calling each group a “section”—using the word “section” to describe both the group and the components is not ideal. And I don’t use Roman numerals. So I’m comfortable with using “articles”, and I’d willing to recommend that approach anywhere in the world.

Mark: I disagree. I think it is inefficient to include references to articles and sections in a contract, rather than settle on just one word, which could be sections or clauses or whatever you prefer. In my experience, and particularly with non-US parties, you end up with people not understanding the schema and misusing it. You don’t need different words. It can be section 1.1 or section 1.1.1.1. I think this aspect, in both the UK and US, is based on historical accident—practice in diplomatic treaties or legislation, probably—and the efficient approach is just to use one word.

Ken: With your approach, “section 1” could refer to a single provision or to umpteen provisions. So I think that using “article” for the whole and “section” for a part of the whole is more informative. And I think that the scope for confusion is well-nigh nonexistent. Your use of the multiple-numeration system (1.1.1.) has no bearing on that. (Incidentally, I don’t use the multiple-numeration system, for reasons explained in MSCD.)

Readers, I invite you to weigh in on this gripping issue.

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.