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.
I am presently reading 15 CFR 740.17(b)(2)(i)(A)(5)(iii) — no kidding — and therefore I’m not in the mood to contemplate deeply hierarchical contract structures. I lean toward Mark’s view.
I think “deeply hierarchical” is rather overstating it!
Agreed, excessive hierarchy was my point. As to whether the top level of the hierarchy should be named “section” or “article”, I’m indifferent — but I don’t like attaching such names to the second or lower levels of the hierarchy. Multiple names (by themselves) don’t prevent ambiguity, and they are prone to usage errors.
I usually see “Article” used in US contracts to cover a range of sections, so that, for example, “Article I” could be sections 1-7, “Article II” could be sections 8-12, and so on. I have never found any use for these kinds of Articles. They seem to be intended to organise the contract into coherent parts, but in practice they are not useful for navigation – the section headings themselves are far more useful.
But if the question is simply whether we should have a hierarchy of “Articles”, then “Sections” (then maybe “Clauses” below that), or just call them all Clauses, then I go with Mark’s approach. As I’m an English lawyer that probably won’t be very surprising, but I do look at a lot of contracts drafted by US firms and I still find them much less user-friendly. Use of Articles and Sections is one part of that – unless everyone uses the same scheme (which they don’t), you have to work it out for each contract or risk the mortification of saying “Section” when you should have said “Clause”, or whatever.
If “Clause” is used for everything, the only danger is use of the phrase “this Clause”, because that can obviously be ambiguous. For that reason I always say “this Clause 5(A)”, stating the number of the clause. Other than that, there really isn’t much scope for confusion at all.
W: I can’t recall the last time I saw the article and section arrangement you mention in your first paragraph. In my experience, it’s a rarity, thankfully.
I can’t countenance calling everything a clause.
By the way, do you have a copy of MSCD handy? I don’t think you can give my format the thumbs-up or thumbs-down without having read the reasoning behind it.
Ken
I’m afraid I don’t, and I’m sure I should get a copy – I have had enough enjoyment from your blog, anyway! Maybe I will ask for it for Christmas. But for now, I suppose ignorance is bliss!
With online documents and assembly systems, it might be a good idea to consider how the contract should be marked up in HTML5. The World Wide Web Consortium w3.org has spent a considerable amount of time on these issues. A good resource to look at is HTML5doctor.com. Another good example is a site that marked up the U.S. Constitution in HTML5 (look at page source in your browser to see the HTML markup): http://cdharrison.com/sandbox/html5/constitution/. These sources seem to favor a section approach for contracts.
I use articles with a single Arabic numeral (Article 1), then sections with multiple numeration (Section 1.1), then — rarely — Subsections with multiple numeration (Subsection 1.1.1). If I have enumerated lists, I use letters and call them by whatever level of the outline they fall into (Section 1.1(a)); likewise for enumerated sublists (Section 1.1(a)(1)).
Articles, sections, and subsections must always be complete sentences and must have titles. Lists need not be complete sentences and generally can’t have titles.
Even the slightest deviation from the above is immoral, a cardinal sin placing your immortal soul in jeopardy. Just sayin.
I prefer multiple numeration in the main parts of the outline because looking at the heading for the part you are in immediately tells you where you are. It would tell you very little if it just says “C.” I suppos learning the numeration scheme for a contract isn’t a big deal if you read just one in a day, but my readers are reading in higher volumes than that, so need it to be easier.
Correct cross-referencing is just a matter of learing how to use MS Word properly. You can set it to include the appropriate word in both the part heading and the cross-reference.
If I need more than three levels of titled outlines and two levels of lists, that is a strong sign that I need to reorganize, because my writing has gotten sloppy, which probably means my thinking has as well.
I don’t call anything a clause in a contract. If discussing a contract, I will only call something a clause if it can be modified with “independent” or “dependent.” (Sorry, Brits & Aussies.)
I’ve never seen an agreement that had, in Westmorlandia’s example, Article I composed of Sections 1 through 8. That sounds truly bizarre to navigate.
Chris Lemens
I use articles with a single Arabic numeral (Article 1), then sections with multiple numeration (Section 1.1), then — rarely — Subsections with multiple numeration (Subsection 1.1.1). If I have enumerated lists, I use letters and call them by whatever level of the outline they fall into (Section 1.1(a)); likewise for enumerated sublists (Section 1.1(a)(1)).
Articles, sections, and subsections must always be complete sentences and must have titles. Lists need not be complete sentences and generally can’t have titles.
Even the slightest deviation from the above is immoral, a cardinal sin placing your immortal soul in jeopardy. Just sayin.
I prefer multiple numeration in the main parts of the outline because looking at the heading for the part you are in immediately tells you where you are. It would tell you very little if it just says “C.” I suppos learning the numeration scheme for a contract isn’t a big deal if you read just one in a day, but my readers are reading in higher volumes than that, so need it to be easier.
Correct cross-referencing is just a matter of learing how to use MS Word properly. You can set it to include the appropriate word in both the part heading and the cross-reference.
If I need more than three levels of titled outlines and two levels of lists, that is a strong sign that I need to reorganize, because my writing has gotten sloppy, which probably means my thinking has as well.
I don’t call anything a clause in a contract. If discussing a contract, I will only call something a clause if it can be modified with “independent” or “dependent.” (Sorry, Brits & Aussies.)
I’ve never seen an agreement that had, in Westmorlandia’s example, Article I composed of Sections 1 through 8. That sounds truly bizarre to navigate.
Chris Lemens