Although it won’t see the light of day for at least another year, my attention is turning to the fourth edition of A Manual of Style for Contract Drafting. Compared with the difference between the first edition and the second edition, and the difference between the second edition and the third edition, the fourth edition won’t represent as dramatic an upgrade. But it will contain a truckload of new material.
But I’m not sure exactly what to include.
At the outset, my idea was that MSCD would deal with the building-blocks of contract language. By addressing specific usages, the focus would be not on what you say in a contract but how to say clearly and effectively whatever you want to say.
But I’ve already ignored that limit in dealing with some topics. For example, the third edition’s discussion of the phrase consequential damages is in effect a riff on limiting liability. And the discussion of moral turpitude goes on to propose a more effective form of termination-for-crime provision.
So I now wonder to what extent I should give myself additional latitude of this sort in the fourth edition. For example, should I include my version of a force majeure provision? (See this post.) Should I include my explanation of why successors and assigns provisions are pointless? (See this article.) Should I include my indemnification language? (See this post.)
Readers would surely find all that stuff useful. But instead of addressing individual usages, those topics really involve individual items of contract boilerplate—the miscellaneous provisions at the back of a contract.
Rather than expanding MSCD by stealth, I could simply add a new chapter entitled “Boilerplate.” But that could become a tail that wags the dog; I’m not interested in writing an exhaustive text on boilerplate. And although I’m happy to provide model boilerplate language, the best way to do that is through automated templates, such as my NDA template (here).
So perhaps I should add a new chapter entitled “Selected Boilerplate Issues,” or some such, and move to it some materials from the increasingly unwieldy “Selected Usages” chapter.