Contract Drafting: Clear Language

• Form follows function in contract drafting, and deviation can be problematic.
• The chapter outlines characteristics of clear and concise contract language.
• The principles outlined in this chapter should be occasionally revisited.

Clarity in Contract Language

• Contracts must be clear but traditional contract language can be unclear.

Omitting Archaisms

• Traditional contract drafting contains archaic usages.
• Inertia and a subconscious belief that archaisms add gravitas may explain their survival.
• Archaisms create distance between the reader and the text.

Omitting Problematic Terms of Art

• Contract language includes terms of art, words/phrases with specialized doctrinal meaning.
• While legal terms of art add complexity, that can be hard to avoid given the complicated transactions.
• Three kinds of flawed legal terms of art in traditional contract drafting are unnecessary, improvised and unduly complex.
• Jargon is used as shorthand for unhelpful terms of art.
• Lawyers often use doctrinal terms of art in contracts even when simpler terminology is available.
• An unnecessary term of art is when there is a discrepancy between meaning conveyed and semantic function required.

Replacing Terms of Art

• Contracts would be clearer with straightforward alternatives to terms of art falling into one of the three categories.
• Replacing a particular term of art might prompt too much fruitless debate.
• To facilitate change, use terms of art and explain their meanings.
• Another method is to put the term of art in a section heading and replace it with clearer language in the text.
• When replacing terms of art, look for rulings regarding whether there is an attributed significance within the courts.

Terms of Art in Languages Other Than English

• Translating terms of art in English-language contracts governed by non-English jurisdictions can be problematic.
• Include the non-English original after the English translation, in italics and in parentheses, to avoid potential mishaps.

Standard English

• Aim for a specialized version of standard English, the kind used by educated native English speakers.
• Should not use terms such as "plain English" or "plain language."

Precision in Contract Language

• Real precision makes it harder for parties or judges to misinterpret the drafter's intent.
• Nuances in wording routinely cause disputes since the contract says what the deal is.

Omit Redundancy

• Redundancy is a hallmark of traditional contract legalese that adds unnecessary words and confusion.

Limit the Use of Strings

• Lawyers have long strung together words, often synonyms/near-synonyms (couplets and triplets).
• Strings may reflect the shift in language, but also rhythmical appeal, lexical doubling.
• Strings add pomp or help finesse the task of selecting the best word.
• If one word expresses the intended meaning, the others are extraneous.
• Courts interpret legal documents by giving meaning to every word, which leads to litigation.
• Someone may try to convince a court that omission of claims from the second string is significant.
• Prune traditional synonym strings, as surplus words are unnecessary.
• Express intended meaning clearly instead of relying on strings incorporating subtle distinctions.

Reject Needless Elaboration

• Contract provisions often refer to general terms and their constituent components.
• Stating all claims (at law or in equity) elaborates needlessly when saying all claims is the same.

Avoid Story Telling

• Contract language shouldn't seek to explain, tell a story, or persuade.
• Word usage should be primarily for regulating conduct, stating facts, and allocating risk.
• Avoid words associated with expository, narrative, or persuasive prose, such as therefore, because, and furthermore.
• Rhetorical emphasis consists of words/phrases that say, "and we really mean it!"

Rhetorical Emphasis

• Delete or replace rhetorical emphasis.
• Words/phrases include; absolutely, at no time, completely, fully, if and only if, in all respects, in any manner, in any way, it is emphasized that, of any kind, strictly, under no circumstances, whatsoever and wholly.

Omit Repetition

• Drafters shouldn't repeat the same thing in a contract.
• Repetition invites disputes and adds unnecessary words.
• Redundancy differs from repetition through surplusage in saying something as opposed to saying something twice.

Consistent Usages

• Usages should be consistent to avoid unintended meaning attributed to inconsistent usages.
• Do not use the same word or phrase to covey different meanings that may create confusion.
• The word shall is often abused in that regard.
• Differences in wording can suggest intended differences in meaning.
• Consistency in language and layout is beneficial.