From the lexicological point of view isolated words and phrases mean very little. In context they mean a great deal, and in the special context of contractual undertakings they mean everything. Contract English is a prose organised according to plan.
And it includes, without limitation, the right but not the obligation to select words from a wide variety of verbal implements and write clearly, accurately, and/or with style.
Two phases of writing contracts exist: in the first, we react to proposed contracts drafted by somebody else, and in the second, which presents greater challenge, we compose our own.
A good contract reads like a classic story. It narrates, in orderly sequence, that one part should do this and another should do that, and perhaps if certain events occur, the outcome will be changed. All of the rate cards charts, and other reference material ought to be ticked off one after another according to the sense of it. Tables and figures, code words and mystical references are almost insulting unless organised and defined. Without organisation they baffle, without definition they entrap.
In strong stance one can send back the offending document and request a substitute document in comprehensible English. Otherwise a series of questions may be put by letter, and the replies often will have contractual force if the document is later contested.
A sampling of contract phrases
My observations about English so far have been general in nature. Now it appears logical to examine the examples of favourite contract phrases, which will help ease the way to fuller examination of entire negotiations and contracts, a full glossary is beyond reach but in what follows there is a listing of words and phrases that turn up in great many documents, with comments on each one. The words and phrases are presented in plausible contract sequence, not alphabetically.
Whereas Everyman #8217;s idea of how a contract begins. Some lawyers dislike Whereas and use recitation clauses so marked to distinguish them from the text in the contract. There the real issue lies; one must be careful about mixing up recitals of history with what is actually being agreed on. For example, it would be folly to write: Whereas A admits owing В $10,000 because the admission may later haunt one, especially if drafts are never signed and the debt be disputed. Rather less damaging would be:
Whereas the parties have engaged in a series of transactions resulting in dispute over accounting between them
On the whole Whereas is acceptable, but what follows it needs particular care.
It is understood and agreed On the one hand, it usually adds nothing, because every clause in the contract is understood and agreed or it would not be written into it. On the other hand, what it adds is an implication that other clauses are not backed up by this phrase: by including the one you exclude the other. It is understood and agreed ought to be banished.
Hereinafter A decent enough little word doing the job of six (Referred to later in this document). Hereinafter frequently sets up abbreviated names for the contract parties.
Knightsbridge International Drapes and Fishmonger, Ltd (hereinafter Knightsbridge).
Including Without Limitation It is useful and at times essential phrase. Earlier I #8217;ve noted that mentioning certain things may exclude others by implication. Thus,
You may assign your exclusive British and Commonwealth rights
Suggests that you may not assign other rights assuming you have any. Such pitfalls may be avoided by phrasing such as:
You may assign any and all your rights including without limitation your exclusive British and Commonwealth rights.
But why specify any rights if all of them are included? Psychology is the main reason; people want specific things underscored in the contracts, and Including Without Limitation indulges this prediction.
Assignees and Licensees These are important words which acceptability depends on one #8217;s point of view
Knightsbridge, its assignees and licensees
Suggests that Knightsbridge may hand you over to somebody else after contracts are signed. If you yourself happen to be Knightsbridge, you will want that particular right and should use the phrase.
Without Prejudice It is a classic. The British use this phrase all by itself, leaving the reader intrigued. Without Prejudice to what exactly? Americans spell it out more elaborately, but if you stick to American way, remember Including Without Limitation, or you may accidentally exclude something by implication. Legal rights, for example, are not the same thing as remedies the law offers to enforce them. Thus the American might write:
Without prejudice to any of my existing or future rights or remedies
And this leads to another phrase.
And/or It is an essential barbarism. In the preceding example I #8217;ve used the disjunctive rights or remedies. This is not always good enough, and one may run into trouble with
Knightsbridge or Tefal or either of them shall
What about both together? Knightsbridge and Tefal, perhaps, followed by or either. Occasionally the alternatives become overwhelming, thus and/or is convenient and generally accepted, although more detail is better.
Shall If one says Knightsbridge and/or Tefal shall have or will have, legally it should make no difference in the case you are consent in using one or the other. Shall, however, is stronger than will. Going from one to another might suggest that one obligation is stronger somehow than another. Perhaps, one #8217;s position may determine the choice. You shall, however is bad form.
Understanding It is a dangerous word. If you mean agreement you ought to say so. If you view of affairs that there is no agreement, understanding as a noun suggests the opposite or comes close to it., it stands, in fact, as a monument to unsatisfactory compromise. The softness of the word conjures up pleasing images. In accordance with our understanding can be interpreted in a number of ways.
Effect Here is a little word which uses are insufficiently praised. Such a phrase as We will produce is inaccurate, because the work will be subcontracted and the promise-maker technically defaults. Somebody else does the producing. Why not say We will produce or cause to be produced? This is in fact often said, but it jars the ear.
Accordingly We will effect production highlights the point with greater skill.
Idea This word is bad for your own side but helpful against others. Ideas as such are not generally protected by law. If you submit something to a company with any hope of reward you must find better phrasing than my idea. Perhaps, my format or possibly my property is more appropriate. Naturally, if you can develop an idea into a format or protectable property, the more ambitious phrasing will be better justified.
As between us It is useful, because people are always forgetting or neglecting to mention that a great many interests may be involved in what appears to be simple dialogue. I reserve control over and You have the final power of decision over sound like division of something into spheres, but frequently I am in turn controlled by my investors and You – by a foreign parent company, making the language of division inaccurate. Neither of us really controls anything, at least ultimately.
Thus it will be useful to say, As between us, I control and so on.
Spanning Time periods are awkward things: for a period commencing August, 1 and expiring November, 15 is clumsy; from August, 1 to November, 15 is skeletal when informing how long a contract obligation endures.
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