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.
4 thoughts on “What a Backflow Preventer Has to Do with Contract Drafting”
Ken: I appreciate what you are saying. I really do. Advocating for what is right is harder than advocating for what is. But you are fighting from the wrong side, given the construction of our legal system. Your suggested changes to contract language, even if meticulously considered, are still just your opinion.
Fighting against you are the tomes you listed and the judges that:
1. Look to them for deciding an issue of first impression (of which there certainly can’t be many at this point).
2. Use stare decisis (of which most do) – which used those tomes to support way back when.
Maybe you now need to become a judge and start using your MSCD in making your decisions. I think even then, though, the problem you will encounter is that prior decisions hamper your ability to eliminate magic words that have taken centuries to develop.
Sorry for the doom and gloom. Lawyers are an interesting bunch – we want flexibility to argue for any potential position, but in contracts, we love consistency of language application for consistency of interpretation (even if such language is antiquated or, as you regularly point out, not really all that clear).
Jeff: I attempted to deal with the “opinion” notion here. What I do is figure out those usages that are clearest and minimize risk. In making any given recommendation, I might be right or wrong, but I’m not blowing smoke.
My recommendations allow drafters to express the intent of the parties sufficiently clearly that the parties don’t have to look to a court to say what the contract means. The vast, murky ocean of caselaw and texts only comes into play if the drafter screws up. If you do a good job, it’s irrelevant.
Those who, for lack of time, energy, or semantic acuity, are happiest continuing to serve up the same old shit will keep their arguments highly generalized. Your comment in effect invokes the notion of “tested” contract language; that’s a fallacy I do battle with repeatedly, most recently here. If you want to set me straight, the only way to do so is to roll up your sleeves and show me, one usage at a time, how my recommendations lack clarity or add risk.
Back flow preventer? Is that a US engineering term? Like a one-way valve? (Sound of Ken sighing.)
That’s what the law-sprinkler guys call it, so that’s what I’m calling it! I suspect that it’s a specialized valve. Or I hope it is, given what I paid for it …