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    Introductory Thoughts To Drafting Contracts

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    Introductory Thoughts To Drafting Contracts

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    Mohamad Zaarour
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    1. Introductory Thoughts to Drafting Contracts

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    Introductory Thoughts To Drafting Contracts

    Uploaded by

    Mohamad Zaarour

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    © All Rights Reserved
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    1. Introductory Thoughts to Drafting Cont 1.1 What is the goal of Contract drafting? ie neeting of two mind: The goal of a contract is to describe with precision the substance of the meet aa between the parties, which A prerequisite fora precisely written contract is a clear understanding between the parti juent reader in exactly the s 12 complete, meaning that all possibilities have been addressed tat it lacks both vagueness and ambiguity Iis able to withstand hostile, critical review, A\ review of its provisions is likely to be someone try 1.3 The Lawyer as the Client's Guide Xt ie lewyer's jo in the contact formation process to make the eign w derstand and care shout many things tht the client may prefer to ignore. Iti a task requiring not only technical knowl >the issues but the necessary interpersonal skills to e P en The lawyer must develop the skill w explain complicated concen and issues in a Understandable way. A auging the client's knowledge and interest level and tailor the explanation accondingly 14 Which Side Should Draft? Normally the party with ailing, However, you should pash 2.1 What makes contractual language speci”? traci tends to be oldtasioned ittexent (0 on easons forth hve get legal vocabulary «The mixture of English Latin, and French fom whic! + Thed avoid ambiguity in the use of tive and prefer to use forms ani «Familiarity and habit: lawyers tend to be Conserv fore and seem to be effective S “of using precedent documents in drafting which results in lack of ch: «Pressure o conform to accepted professional stand ard 2.2 Doublets and Triplets say somethi habit of not using one word to gal English has a stran; The problem with using doublets and e.g. null and vo ficult to read, Modem practice is to avoid these old forms w se one word instead. ed we ‘Common doublets and triplets are listed below: Doublet / Triplet ] Single Word Equivalent ‘Able and willing [oe = ee [Aare and covenant agree eis a “Alland sandy al eee [Authoriseand diet ———~SCS~S~S~S~S~*«S@ thr Cancelled and set aside ‘anced ae [Custom andusage ~~ jeastom Deem and consider Do and perform Due and owing Fitand proper Full and complete compleie Goods and chattels ‘goods pedal papers ‘object OR purpose maintain nae | ‘Known and described as Known as iF Tegal and valid < id void, = [Order and dire order | | Over and above a [exceeding vr ai| art and parcel ie part 2 cm | Perform and discharge perform OR discharge Repair and make good | repair [Bote and cxchsive [Ferns and conditions sole OR exclusive | Communicate, indicate or suggest Dispute, controversy or claim devise and bequeath | Hold, possess and enjoy communicate dispute give hold terms | Touch and concern conem Uphold and support uphold a Caneel, annul and set aside . ceaneel ce ea pay Pay ava en OR aH Possession, custody and contol ibe ty OR eae : | promise OR agree ——"" a ikannieiooanndsecas 2 Promise, agree and covenant way 2.3 Deeming “The word deem is feqwenty wed in contracts. ts legal Sense it means 4 ye something that it isnot, oF as possessing eeitin characteristics which it does pg, ‘This meaning is used in contracts 10 creat thay, xe the idea that something mentioney deemed (or treated) to be something else Example “Notice shall be deemed served 72 hours after having been posted.” ‘The purpose ofthe clause isto indicate that for the punposes of the contact te en, regard a notice as having been served once 72 hours has passed after the notice Was pug 2.4 Here-, there-, and where: words Words like hereof, thereof and whereof are not used often in ordinary English Ha appear frequently in contracts. They are ge contract. of names of tin Example: the pari instead of: The parties Often these words can be mz jons. They are weak ambiguous references wd how they are used Word [Hereafter ‘Hereat leaning Tram now on or to some time i the future fo (2) on account of or after this ahs place or — rom is place oF point J in this document or matter —Hihe goods shall be Tie partes hereby herefrom. The terms referred 10 her shy —|rarioaiy iw wis-documant or [The products heteinabove ‘itey ‘matter: described Buea tng, [Hereatier imerisired ww this mater oF [hereinafter referred to as the | document Company ec Feeibcine previously Ta Wis Gocument or] The products hereinabove mater described THereot ‘ofthis matter or document Vihepanieshereot ——=S*~=«& Heretolore belore now The parties have had no business dealings heretofore awed | ct tle Thereafter Heeapo inter reemed 10 This watier or | the exemptions — — | Trewin with his eter Tenelose herewith the plan Therof ofthe thing just mentioned) The contract was signed on 1 May 1999. The parties thereof after that time The produets shall be transported to The Grange. Thereafter, shall be stored in a warehouse. Thereat Thereby — Therein Theteinafter [Upaiihat place | Q)on account of or afier that by tha means asa est of hat | in that plaee, document or respect | | later referred 10 in that matter or document Thereat, payments shall cease | to the | contract dated 1 May 1999, It is seed therein that Thereof —T Reference is made i 7 Thereon ‘oF Following fom the ting just Thereto To that place or wo that mater document Therefor [not to be | for that confused with therefore} Thereupon 7 mene or soy afer ‘hereabouls ~~} the place | something is Pee v | | Wherein [in which (2) in which place or respect | {| _____— Whereof ‘of what; of which immediately afier whicl |_\asieal -10- ~~ wan My | to the contract dated 1 | agreed | he parties threo! The machine © block. ‘There #* 2 7 | ctl racket i thereto she pares sapent sal Be dl ihe equi” ver 200 lead | the sum of $150,000. paiivery shall he place 2003. Thereup september nt shall be stor ‘equipment shall Be stor y's warehouse Compan Company shall ‘The informed a8 10 the whereah the products he seller atempied extra interest on late vnereat the buyer object Fhe contract dated T Ny whereby the Company purchase the products [The buyer breached wherefore dama; |The contract d | wherein it is stated ~Yathe | Company one directors whereof is national oi ] by the buyer to the 9 | | | ptember 2003, whereupon the buyer's liability to the seller shall be discharged. 2.5 Other Troublesome, Old-fashioned Language Whatsoever means ‘no matter what’, Wheresoever means “in or to whatever place’ Howsoever means “in whatever way or to whatever extent’. Hence means (1) for this reason, and (2) from now on, Whence means (1) from what place or source; (2) from which or from where: (3) to the place from which; or 4) as a consequence of which. ‘Thence means (1) from a place or source previously mentioned, and (2) as a consequence. Thenceforih means from that time, place ot point onwards. 2.6 Obligations, authorisations, and conditions In contracts, it is usual to find the words shall, will, musi, and may used over and over again. The words are used in different contexts. In the third person will refers to a future intention whereas shal! indicates an imperative Legal documents, drafted in the third person, often express obligations using shall, However, shall is frequently overused and there is now a trend to avoid shall altogether. May is used in the following situations: To express a possibility that something may be done ‘ro indicate that one has discretion to do that thing Me ~~ T To indicate a wish is stron ghatt 70 r May not indicates that part does not have discretion to do something: ° indicating a duty not to do something, In summary, use ~ will to state a future fact = “Shall” to state an obligation = “may” to state an option ora right, and ‘must” to state a condition precedent 2.7 The Plain English Movement 2.7.1 W1 sed, but is clear and effective fy Plain English is language that is not artificially ‘complicat ae eae aflared word and phrase, Which Can ea imtenced audience. While it shuns the antiquated and ' aa. fa substitute, it does not Seek (0 Fd doc ner or replaced with a more Us cither omitted altoy ; opie theless, plain language documents oe ‘of terms which express important distinetions. Non se tec paragraph structure, with organist cexpert readers some assistance in coping withthe: tnnical terms. To a far larger este js coneemed with matters of sentence and language 0 many of the hindrances to clear expression n originate.” design, where “The Securities and Exchange Commission (SEC) has issued plain English guidelines for disc documents. The SEC says the charaeteristies of plain English are: 1. Short sentences 2. Definite, conerete, everyday language 3, ‘The active voice Tabular presentation of complex or multifactor information Separate paragraphs and seetions, with headings, for separate concepts 6. ‘The absence of highly legal jargon or highly technical business terminology and use of Is other foreign languages 7, ‘The absence of double or multiple negative +12. 8 The use of multiple columns of text if the font is small These characteristics are equally applicable to contract draftin 7.2 Benefits of Drafting in Plain English The benefits of drafling in plain English include wlerstandit Increased efficieney and Fewer errors Image of the legal profession Compliance with statutory requirements 3 Contract interpre The basic method of interpretation traditionally used by common law lawyers is known as the and effect of a fexmal ot literal approach. This approach is based on the idea that the mean termined solely from the words of the text itself and not from any external contract should be dk This method can be contrasted with the eivil law purposive approach. The purposive approach is effect of a contract or piece of legislation should be based on the idea that the meaning and determined taking account of abject and purpose of the contract and the intentions ofthe parties The effect of the literal approach on drafting contracts is tht common law lawyers tend to draft wrong in the contract, contracts in a way which secks to cover any possible thing which might ‘no matter how remote abutary 248. Tech ical and Specialized V Here are a few terms that you might encounter in the course of the discussion, along with som, ber, these are not technical definitions. Strictly ‘ther tetmis that might be of use, Please remer wore time on the details of various legal systems echnical definitions would require us to spend 13. wallet (rrr ral descriptions of the sense orth an suse for ov prpnes Rahs se 2 ADR ” ways to resolve disput « dispute resolution, oF 9 a Eee nediation and arbitration. . ouroom, The tr ell eaeomPSSS «negotiation, ™ aasiqnment he ua of rigs or des 09 ES aati son of aw for exp wen somenne = hen a compa Boilerpla such as choice of 1 also his & more general sesoftion mechanisms and the Tike, TRE 6D issues, dispute nts. The any standardized prepined T val prin afer a TY commercial AbOU A prod the small prin, For example, th atc lawyers. Choice of law (what legal prin CChoiee of Law ~ fen, the parties ty in international transactions, the choice resolve any dispute between them. P bea signiicam point of ne vec eee th ut) shou distnuisie rom nie of forum (Wet e ip spt resolution ntbod iigation or some frm of ADR). he resolved and eve of Common Law ~ this term, when const with Civil Law refer to legal systems thie vgn inh Bish lea system, The egal system of the Unite States i from the system, the tem is used 10 distinguish judge-made low tradition. Within the US. legal sdatutes (made by legislatures) or regulations (isued by the exceutive branch of gover sy also refer othe method of analysis tha a our uses 0 interpret a statute, replation rule of lav, and may include the concept of precedent Conulton Precedent ~an event thal must happen before a contractor a co Condition Subsequen Subsequent -2 happening which terminates the duty ofa party to perfor 0: ce) that a promise b refore the obligee is allowed (0 €X¢ se Notioe and Cure Periods are sometimes F sidered to be in Breach of the ace and hars enforcement ofthe contract performance a ty of lait carrying ou Jiations and duties; (3) enforcement ofa judement rn): 4) in criminal law, carrying out a death sentence, This wor B a good example rs with multiple meanin vag Indemnity — on agreement in which one party agrees to reimburse another party itis held Hiabl rnd in commercial contracts, and may be coupled with “hold harmle hold harmless” provision, the first party says that they will not hold the secon —_ ge have the FAM 10 dy giv er party responsible for certain ations, even ifthe first party under applicable law. eal 305618 PTI ual Property 10 mean aise permission to ys. meone ¢! fer technology fron xt. Is 8 nto om the © 7 Intelleet License ~ this term has many meanings, depending use the property of the licensor. It is often used in the const Property B1ve * used ellectal tran! seement by which the owner of the Intellcetual property would be gr ments are afte typically for a royalty or a fee. License ag! i use of the I

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