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Ken Adams on Contract Drafting

In earlier posts, I covered the advice of Bryan Garner, an advocate of plain legal English. His scope covers all legal documents. Another luminary I am aware of is Ken Adams, who specializes in contract drafting. Both in his blog and in his book A Manual of Style for Contract Drafting, Adams provides countless eye-opening examples of the best way to draft contracts. I was pleasantly surprised, because I learned that what I have read in many US contracts is verbose and poorly drafted. Although I do not draft contracts for a living, with Adams' advice and the advice of other legal writing gurus, I feel that I think more like a drafter while I am working, and not just a regular translator.

Here are some highlights from Adams' A Manual of Style for Contract Drafting:

  • A drafter should never say the same thing twice in a contract, whether it's the party's address, a number, or anything else. Repetition not only adds unnecessary words, it also invites dispute.

  • Most contracts use the word agreement in the title rather than contract, perhaps because agreement sounds more genteel than does contract, with its two /k/ sounds. Nevertheless, contract is unobjectionable. The word agreement has a broader meaning than does the word contract, in that agreement can refer to an informal arrangement, but it's clear that's not the intended meaning when agreement is used in the title of a contract.

  • In all cases, use between as the preposition in introductory clauses rather than among or a silly couplet such as by and between.

  • One helpful element of language of performance is hereby, which signals the act described is becoming accomplished by virtue of the speech act itself. You could omit hereby, (example cited) but this use of hereby is consistent with standard English. If you omit hereby from Doe hereby purchases the Shares, it would be clear from the context that the intended meaning isn't that Doe is in the habit of purchasing certain shares. But in purely grammatical terms, one couldn't exclude that meaning without using hereby.

  • Anyone contemplating eliminating shall from contracts should consider not only the modest benefits of doing so, but also the drawbacks of the alternatives available to impose an obligation on the subject of the sentence. One alternative to using shall to serve this function is must. Asprey favors this approach.

  • But replacing shall with must would result in must being used to express any obligation, whether it's imposed on the subject of a sentence—The company must reimburse the Consultant for all authorized expenses—or on someone else—The Closing must take place at Acme's offices. Furthermore, must also features in one way to express conditions. So using must for purposes of stating an obligation imposed on the subject of a sentence would result in must being used to convey different meanings. Although that's less of a problem than overuse of shall.

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