What a Backflow Preventer Has to Do with Contract Drafting

In case you’re still mulling over my post on using states instead of represents and warrants (here), allow me to try to put in a broader context what makes represents and warrants irrelevant for purposes of statements of fact in a contract.

After putting it off for, oh, ten years, we finally had a lawn sprinkler system installed. An important component is the backflow preventer, which prevents stuff from the garden from making its way back up the system into our indoor plumbing.

Well, there should be a backflow preventer between contract drafting and dispute resolution. Doctrinal terms of art that have evolved for resolving disputes have no bearing on how to clearly articulate meaning in a contract, so they shouldn’t be allowed to creep back upstream into the contract-drafting process.

For example, I don’t give a fig that Chitty on Contracts (an English text) distinguishes between promissory conditions and contingent conditions. And I have no use for the three pages devoted to “condition” and its variants in  Black’s Law Dictionary. All such terminology has been cobbled together over centuries by judges of varying talents in varying jurisdictions in the course of handling countless different disputes. The resulting mish-mash has no bearing on how to articulate clearly the elements of a transaction.

So when it comes to conditions, all I care about is the three different ways to express conditions and why it’s important to distinguish between conditions and obligations.

***

By the way, this post and yesterday’s represents and warrants post aren’t a sign that I’ve become some sort of radical. Instead, they represent just another incremental step in my stripping the superstition from contract language. I understand that you might not be comfortable with all my conclusions, but that doesn’t have any bearing on their validity, until such time as you show me that I’m wrong.

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.