What to Call the Components of the Body of the Contract

Yesterday I gave another of my Osgoode Professional Development seminars in Toronto, to a sellout crowd of eighty. During a break I discussed with one of the participants what to call the components of the body of the contract. In a follow-up email, here’s what she had to say on the subject:

As discussed, in England the practise as I know it is to refer to “clauses” and “paragraphs” and “sub-paragraphs” of a contract. “Sections” and “articles” are generally used only when referencing statutes and legislation in general.

In chapter 3 of MSCD, I refer to sections, which can be grouped into articles and subdivided into subsections. Because that terminology is standard in the U.S., it didn’t cross my mind to consider alternative labels. I also discuss how any given sentence—potentially a very lengthy one—in a section or subsection can contain a set of enumerated clauses, which can be integrated or tabulated. And any given enumerated clause can itself contain a further set of enumerated clauses, although if in a given sentence you have more than two levels of enumerated clauses, the matryoshka-doll effect would usually make it harder to read rather than easier.

To check out English terminology, I had a look at my one book on drafting that was written by an English lawyer. (It’s outnumbered by my Canadian and Australian titles.) I’m not crazy about this book, so I won’t mention its name. (Yes, I know I should check out Mark Anderson’s book!)

According to this unnamed work, the basic unit is the “clause,” which can be grouped into “parts” or “sections” and can be divided into “sub-clauses.” That’s analogous to my articles-sections-subsections structure. I prefer section, and not only because it’s entrenched in the U.S.: clause-as-section clashes a bit with the linguistics meaning of clause.

But it then goes on to say that by means of “paragraphing,” sub-clauses can be divided into “paragraphs” and “subparagraphs”—what I refer to collectively as tabulated enumerated clauses. “Paragraphing” is a standard term, but I prefer the other term for this, “tabulation”: in general usage it’s accepted that a paragraph is made up of one or more entire sentences, whereas a tabulated enumerated clause is only part of a sentence. For the same reason, I don’t refer to paragraphs and sub-paragraphs.

My other quibble is that in two respects it’s inaccurate to refer to tabulating sub-clauses. First, you tabulate a single sentence, and a sub-clause may well consist of more than a single sentence. Second, the sentence being tabulated could be in either a clause or sub-clause (i.e., section or subsection).

Ultimately, I’m not hung up on what labels you use for articles, sections, and subsections. I’m more concerned about distinguishing between, on the one hand, sections, subsections, and articles, which are concerned with how one groups sentences, and, on the other hand, tabulated enumerated clauses, which are concerned with how one subdivides individual sentences.

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.

10 thoughts on “What to Call the Components of the Body of the Contract”

  1. Thanks, Ken, I appreciate the name check!

    Drafting and Negotiating Commercial Contracts uses the English convention of referring to clauses, but doesn’t discuss the convention. I agree that it doesn’t really matter which convention you use, as long as you are consistent in the agreement. The English tendency (does that phrase sound slightly dodgy?) is to refer to clauses (or sometimes sub-clauses) at several levels, eg 8, 8.1 (or 8, 8(1), depending on your preference) rather than the US practice of saying Article VIII, but Section 8.1, etc).

    My guess is that these conventions (and also the numbering conventions for contracts) are based on practice in legislation and international treaties. For some reason one refers to clauses and sub-clauses of UK Parliamentary Bills, but sections and sub-sections of UK Acts of Parliament. Thus the famously controversial Clause 28 became Section 28 when it passed into legislation – see http://en.wikipedia.org/wiki/Section_28

    The Vienna Convention on the Law of Treaties uses the system of Articles and Sections. http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

    A style guide for European legislation indicates the use of Articles and paragraphs – see http://eur-lex.europa.eu/en/techleg/pdf/en.pdf. But I wouldn’t recommend Euro-legislation as a starting point for good drafting!

    I am not familiar with the expression tabulation in the way you use it, and think of it only in relation to tables or perhaps tab stops. However, your comments on this point resonate with me, as I have my own numbering system for contracts, which combines (as I see it) the best of the 8.1, 8.1, 8.1.1 versus 8, 8(1), 8(1)(a) systems, but my system is not available as a standard Microsoft Word option (!) I tend to use 8, 8.1, 8.1.1 etc for whole sentences and then use (a), (b), (c) for incomplete sentences that need to be read in conjunction with an introductory phrase that appears before the (BrE) paragraph / (USE) clause.

  2. Mark: A couple of other writers on contract drafting who’ve used the term “tabulation” are Reed Dickerson (U.S.) and Robert C. Dick (Canada).

    For details of the MSCD enumeration scheme, readers will have to consult the book. But for me, a key test is that I’ve been able to automate it using the Numbering Assistant.


  3. I understand your structure and its usefulness when applied to monstrous agreements such as large M&A agreements, where section numbers will restart in every article, but I fail to see the utility of such terms for use in smaller agreements.

    If an Article is defined as a group of sections, then this term can be a useful tool even in smaller agreements. However, I fail to see why subsections are useful.
    Referring to Article 1 (which contains Sections 1 to 3) is an efficient reference but referring to Section 8.1 subsection (a) is less efficient than simply referring to Section 8.1(a).

    Out of interest, I took a look at one example you had on your site https://www.adamsdrafting.com/downloads/one-column-v-two-column-091107.pdf.

    For clarification, because I know how much you enjoy that phrase, would you refer to the first subpart of Section 4 as “Section 4(a)” or as “Section 4 subsection (a)?”

  4. Jason: I said that sections can be grouped into articles. Whether you do so is indeed a function of how long the contract is.

    I’d never use the term article 1 to refer to sections 1 through 3, and I’ve never seen anyone else do so. It would be confusing.

    My referring to subparts of a section as “subsections” doesn’t mean that I propose that you use that term in a contract. In MSCD 3.73 I recommend that you refer to section 4(c).

    And the sample you link to is an old one. Click here to see what the Word version of MSCD sample 3 (MSCD Enumeration Scheme, “Articles” Version) looks like.


  5. Since the purpose is merely to cross reference another portion of the agreement, it should be kept as simple as possible to read. So, “clause 1.2.3” is far easier to read than “subsection 3 of section 2 of article 1”. Would the former also not be more in keeping with plain language drafting? I think that it would.

    Incidentally, on the subject of jurisdictional differences, in South Africa we generally use the “clause 1.2.3” method. Occasionally, one might read “subclause 1.2.3”.

    Also, the word “section” is used in statues; the word “article” is used in international treaties and in companies’ articles of association, which are essentially company constitutions; and the word “paragraph” is used in pleadings, notices and affidavits.

  6. Adam: I don’t think anyone is recommending that one say “subsection 3 of section 2 of article 1.” Seeing as I use the (a) hierarchy for subsections and use the multiple-numeration system for section numbers (1.1, 1.2, 1.3, etc.) when I group sections into articles, I’d instead refer to section 1.1(a). Ken

  7. Hey Ken, you have helped us before….would this clause, paragraph’s structure imply a violation of one of the ‘Non-Compete” sub clauses A or B would be a violation of the Non-Compete?

    6. NON-COMPETITON – The EMPLOYEE hereby agrees that he shall not, during the term of this Agreement and any extension thereof, and for a two (2) year period following EMPLOYEE’S last date of employment with EMPLOYER, directly or indirectly (without the express written consent of the EMPLOYER);

    (A) Own, operate, be employed by, or participate in the ownership, management or operation of any general dentistry practice other than that of the EMPLOYER orotherwise practice general Dentistry, within a 5 mile radius of any of the EMPLOYER’S current or future business premises existing at the time of the termination or expiration of this Agreement; or

    (B) Directly or indirectly, solicit or attempt to divert or take away: (1) any patient which is now, or which may become during the term of this Agreement, a patient of record of the EMPLOYER, or (2) any doctor referring patients to the employer.

    The EMPLOYEE also agrees not to directly or indirectly promote or make any records or other confidential information available to any other dental practice.

    The point we want to make per our default judgment that if B is breached then the clause 6. NON-COMPETITION is breached … the clause 6 is a combined geographic and non solicitation agreement… so that if A.is Breached or B or both then the clause 6 Non-Competition is breached.

    Is that consistent with sentence ands paragraph (clause) construction?

  8. Ten+ years later, it’s still a helpful post with helpful comments. Thanks so much for sharing your thoughts, everyone. If anyone’s still following this, what do you think of the § symbol for referencing… articles? clauses? sections?


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