Presentation Transcript

1. Contract Drafting:Civil and Common Law Perspective

   Olena Bokareva JASN06 International Law on Shipping and Trade September 12, 2012 Lund University
2. Usefulliterature Garner, Bryan. Legal Writing in Plain English: A Text with Exercises Strunk, William, and White, E. B. The Elements of Style, 4th ed. Volokh, Eugene. Academic Legal Writing, 4th ed. Haggard, T.R., Legal Drafting in a Nutshell, 2nd ed. Rylance, Paul. Writing and Drafting in Legal Practice King, Steven. On Writing: A Memoir of the Craft
3. Elements of a contract Written v. oral? CISG 1980, Article 11: “A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form”. Name and number of the contract (’Contract of Sale’ is betterthan ’Sale and PurchaseAgreement’) Date – should be written out in full Identify the parties – full names, the country of incorporation, addresses Recitals – explain the background of the contract (whereas…), not obligatory Definitions Headings/Sub-headings The main commercial issues – at the beginning
4. Characteristics of Good Legal Writing T.R.Haggard, Legal Drafting in a Nutshell: accuracy, clarity, concision, simplicity and tone ”Legal writing must be done with the needs of the intendedaudiencewell in mind ” ”A legal documentshould not be written in stuffy, Edwardian English. Professional is perhaps the words that best describes the tone of good legal writing” ”A trulyprofessionalcontract drafter doesmorethanmerelydeterminewhat the clientwants, figureout a waywithin the constraints of law to accomplish that, and thenuse the technicallyappropriatewords to accomplish it” ”Ambiguity and unnecessaryvagueness are commoncauses of contractlitigation”
5. Drafting Techniques Choice of Language (French or Swedish, French/Swedish or English) Not only the content is important , but its appearance Plain English Consistent use of words Provisions should be connected in a clear and coherent manner Short sentences One idea in one sentence Passive voice – could be unclear Punctuation Clear statement of obligations (The Buyer shall pay the price or the Buyer has a duty to pay the price)
6. Drafting Techniques, cont. Avoid legalese – ”the jargoncharacteristicallyused by lawyers, esp. in legal documents” (Black’sLaw Dictionary), example -“hereinafter”, “thereupon”, “hereinbefore”, “henceforth”, “whensoever”, etc., the client does not understand that Pairs of words used by lawyers – “last will and testament”, “sell and convey”, “by and with”, “cease and terminate” , “made and entered – entered”, “hereinafter referred to as “Buyer” – “Buyer” Latin phrases (mutatis mutandis, per annum, lex loci) – do not use them too often Replace a compound preposition ifpossible: ”as a consequence of – because of”, ”at the present time – now”, ”notwithstanding the fact that – although” Nominalisation - contribute to wordiness(”draw a conclusion – conclude”, giveconsideration to – consider”, ”in agreement with – agree” )
7. Drafting Techniques, cont. Draft in the present tense, state obligations with shall (alternative – has the duty to) Use of samplecontracts – do not copywithoutredrafting Do not useAnglo-Americancontractsunless you are familiar with them and know the exactmeaning of their terms Revise and proofread a document as manytimes as you can C.A.Hill and C.King, ” Howdo German contractsdo as much with fewerwords”? “German business contracts are much shorter than their American counterparts. They also avoid the worst excesses of legalese that American contracts are known for. But they seem to work as well as United States contracts”
8. W. Shrunk, ”Elements of Style” “Write in a way that comes naturally” “revise and rewrite” ‘be clear” “omit needless words” “Vigorous writing is concise. A sentence should contain no unnecessary words, paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machinery no unnecessary parts”.