Working Around Drafting Glitches Instead of Fixing Them

Yesterday I found this on EDGAR:

It’s commonplace for contracts to contain instances of notice in writing or written notice and the like even though the notices provision says that all notices must be in writing. Whoever created the highlighted language was aware of that but decided that instead of, or in addition to, encouraging drafters to use search-and-replace to fix such glitches and expecting them to do so, it would be prudent to add language inviting readers to disregard such glitches.

Here’s another example of the same assume-the-worst urge:

Yes, copy-and-pasting from different contracts could result in Cerence Inc. being referred to as both Cerence and the Company in a single contract. This too could be fixed by search-and-replace, but what if someone doesn’t think to do that?

A third example comes from the set of internal rules of interpretation that contained the first example above:

the word “will” will be construed to have the same meaning and effect as the word “shall”;

Of course, that’s a hopeless gesture in the face of the random chaos of verb structures in traditional contract drafting, but what’s relevant for our purposes is that it’s another example of a willingness to paper over cracks. Presumably the idea is that instead of expecting drafters to changing all instance of will to shall—again, a ludicrous notion—let’s harmonize them after the fact.

I know that expediency is a powerful force in transactional work, but the urge represented by these three examples seems an admission of defeat. For one thing, they represent a drop in the bucket; I could come up with many other such fixes. And they signal to the reader that we’ve lost control over contracts. Or rather that we never had control in the first place.

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.