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Contract Drafting: A Stylistic Comedy

Contract Drafting: A Stylistic Comedy

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When drafting an obligation in a contract, which of the following is the preferred format of your office?:

1. The Seller is obligated to transfer possession of the Property to the Purchaser.

2. The Parties hereby agree that the Seller shall transfer possession of the Property to the Purchaser.

3. The Seller covenants and agrees to transfer possession of the Property to the Purchaser.

4. The Seller agrees to transfer possession of the Property to the Purchaser.

5. The Seller undertakes to transfer possession of the Property to the Purchaser.

6. The Seller shall transfer possession of the Property to the Purchaser.

7. The transfer of the Property’s possession to the Purchaser shall be carried out by the Seller.

8. The Seller must transfer possession of the Property to the Purchaser.

9. The Seller is responsible for transferring possession of the Property to the Purchaser.

10. The Seller is required to transfer possession of the Property to the Purchaser.

11. The Seller will transfer possession of the Property to the Purchaser.

12. An obligation exists on behalf of the Seller with regard to the transfer of the Property’s possession to the Purchaser.

When I run this exercise with lawyers, they always disagree on the right way to draft it. In the context of an actual contract, these sorts of disagreements can be time-consuming, frustrating, and damaging to your bottom line.

In this article, you will (i) learn about three problems caused by not having an office policy on standard contract language (e.g., standard formats for obligations, rights, conditions, etc.). and (ii) receive some tips for setting up a contract style policy for your office.

The Problems: Wasting Time and Annoying Clients

First, if you are not certain about the right method for drafting standard provisions like obligations, it takes you a lot more time to create one. Don’t believe me? Just give your colleagues some client instructions and ask them to pump out some provisions. When I do this with my students, many of them fall into an endless loop of writing and rewriting provisions due to their uncertainty about the “right” language. (In fact, some don’t stop writing until either they run out of paper or I tell them to stop.) However, once they select preferred language formats for provisions, they quickly and confidently transform client requests into sophisticated contract provisions. They also write better quality provisions – since they no longer need to waste time thinking about minor matters like word choice, they can focus their energies on uncovering higher-value legal protections for their client.

Second, clients find it annoying when key wording in contracts they are trying to understand changes from provision to provision. At most companies, you would get yelled at for writing complex instructions utilizing inconsistent language.

Third, your firm’s branding takes a hit from inconsistent language. When you provide clients with a contract that incorporates drastically different drafting styles from provision to provision, you reinforce the feeling that your firm’s contracts are merely lazily slapped-together copy-and-paste jobs. By contrast, firms that take the time to harmonize contractual provisions via a drafting style guide make their contracts look more professional and organized.

The Solution: Office Style Guide

Creating a consistent style for your provisions does not mean you need to go crazy with writing a super style guide. You can accomplish a great deal by just standardizing the language for (i) obligations, (ii) rights to act, (iii) rights to receive actions, (iv) prohibitions, (v) lack of obligations/rights, (vi) conditions, and (vii) definitions.

If you find yourself struggling to identify the right language for any of these options, I recommend Ken Adams’ A Manual of Style for Contract Drafting, which breaks down contract language into finite parts to help readers identify best practices for their provisions.

Aaron Muhly is an American lawyer who has been training European professionals on clear writing and effective communication for over 15 years.

This Article was originally published in Issue 7.2 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

 

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