For lawyers whose primary language is not English, drafting contracts in English can be a daunting task. Nevertheless, possessing good drafting skills gives lawyers a competitive edge because in the international marketplace contractual interactions are increasingly commonplace. More and more businesses and individuals are entering into international contractual agreements that are drafted in English.
TECHNIQUES FOR DRAFTING CONTRACTS IN ENGLISH
Lawyers for whom English is a second or third language are often petrified of drafting contracts in English because they are petrified of making mistakes that will be costly for their clients.They are right to be cautious but they do not have to be petrified.
Drafting good contracts in English is not so exotic and dissimilar from drafting contracts in other languages. It is all about capturing what your client wants and needs under the best possible terms. Many contract rules cross language barriers and are universal whether the lawyer works under a common law scheme or a civil law scheme. One universal rule for drafting “good” contracts is that the drafter must also understand the rules of “good” writing. In other words, bad writing generally results in bad contract drafting. Badly drafted contracts often lead to liability for the client and by implication for the firm and lawyer who prepared the bad contract but usually it is not a question of English vs the native language. It is a question, quite often, of bad writing skills in any language and it applies whether you are drafting a contract or writing an email. Hey, we could all get better at writing and drafting.
Even seasoned and experienced practitioners keep polishing and improving their craft over many, many decades. Don’t expect to ever be perfect at it.
Here are 7 tips for drafting contracts in English:
1. Keep it brief. KISS. KEEP IT SHORT AND SIMPLE. When crafting drafting contracts in English, try to keep your sentences as short as possible. Shorter sentences are generally better (and safer) than longer ones which require a lot of punctuation to explain their meaning.
2. Check to make sure that all your sentences express a “complete thought.” A sentence only expresses a complete thought when it has a subject and a verb and sometimes an object. When drafting contracts in English, try to place your subject and verb as closely together as possible. Do not force the reader to have to “hunt” for either one. The object should also come as close to the subject and verb as possible. For example: XYZ Corp will deliver the samples to MEDlock by the 15th day of each month. The subject here is XYZ Corp. It is immediately clear that XYZ is the focus of this sentence. The verb is “deliver.” Or “will deliver.” The direct and indirect objects are “samples” and “Medlock.” This is better than saying On the 15th of the month, the samples will be delivered to Medlock by XYZ Corp.
3. Use active rather than passive voice when drafting contracts in English. In the example above On the 15th of the month, the samples will be delivered to Medlock by XYZ Corp, the drafter used a passive voice and this sentence is inferior to the first example, XYZ Corp will deliver the samples to MEDlock by the 15th day of the month.
4. Watch out for the use, overuse or misuse of “synonym strings” such as “cease and desist,” “indemnify and hold harmless” and “terms and conditions.” Some synonym strings are essential. Others are just redundant and simply “clog” your work. It is a judgement call by the drafter.
5. Be careful to keep synonym strings if they make the obligations of parties ABSOLUTELY clear. This is especially important when drafting international agreements where language is a barrier.
6. Try to be gender neutral. The world is no longer as patriarchal as it used to be and it is improper to use “he” when you mean “they” or “she.”
7. Minimize the use of old lawyer speak such as “heretofore” “aforementioned” and “whilst.”