Lesson 6: 10 tips to improve your contract drafting Part 1

Once again we will look at the draft deed as an example of legal writing; actually, as an example of Once again we will look at the draft deed as an example of legal writing; actually, as an example of bad legal writing. I am going to identify ten items of bad contract drafting and then give you ten tips to follow that will improve your legal writing.

Tip #1. Don’t hide the verb

Lawyers have a bad habit of using nouns instead of verbs. We have a habit of saying I will make an application rather than I will apply. Or I will provide you with verification rather than I will verify. Or I will give you notification rather than I will notify you. The active words (the verbs apply, verify and notify) are hidden inside the static noun form (application, verification and notification). The active words make shorter sentences. That is how English is naturally spoken, and legal writing does not have to be formal sounding either to be accurate or clear.

The drafter of the deed has written, at paragraph 4(h) on page 4:

The Council will effect a cancellation of any entry made in the Local Land Charges Register

The hidden verb is cancel, and it is so much clearer and easier to say The Council will cancel any entry … That’s two words instead of five.

Tip #2. Use lists instead of long sentences

Paragraph 4(q) on page 5 is one long sentence of 131 words with no punctuation (there is an opening bracket before the word without but there was no closing bracket in the initial draft that was sent to me. I think it should be after the first time the word Owner is used). It gives three events that would cause the deed to be ineffective: if the planning permission is not implemented within three years, the planning permission is revoked or the planning permission is quashed. This would be made very clear if the sentence was reworded as a list. For example:

This Deed shall be deemed to have been revoked and be of no effect (without any further act or deed on the part of either the Council or the Owner) if the Planning Permission:

1. has not been Implemented within three years of the date of this Deed, or

2. has been varied or revoked other than at the request of the Owner, or

3. has been quashed following a successful legal challenge,

and in any such case, any sums paid by the Owner …

At a glance, you can now see that there are three possible ways in which the deed may cease to operate.

You should also see that lists must be drafted so that each numbered item makes sense when read with the first part.

… if the planning permission 1. has not been implemented …

… if the planning permission 2. has been varied …

… if the planning permission 3. has been quashed …

Tip #3. Avoid using “shall”

One of the purposes of a contract is to direct the action that must be taken by the parties, and lawyers frequently use the word “shall” to impose such an obligation. This is a problem because “shall” has different meanings.

1. It is used to speak of the future: Next week we shall be in New York.

2. It is used to speak about what might happen in the future: Can I go out with my friends? We shall see.

3. It is used to speak about what you intend to happen: The enemy are strong but they shall not beat us.

4. It is used to express a command: Every landlord shall state the rent that is due in a tenancy agreement.

If an important contract word can have different meanings it should not be used. For this reason UK statutes use the word “must” rather than “shall” where a duty is imposed. When I wrote this lesson, the most recent statute to be passed was the Finance Act 2024 which used “must” 17 times. For example,

The scheme administrator of a registered pension scheme must provide a statement to each relevant person before the end of the tax year 2024-25.

The word shall is not used at all.

The draft deed uses “shall” 31 times and in nearly every case it can be changed to the simple present tense.

In this Deed, the following words and expressions shall have the following meanings

you can write

In this Deed, the following words and expressions have the following meanings

and

If any provision in this Deed shall be held to be void invalid illegal or unenforceable

can be written

If any provision in this Deed is held to be void invalid illegal or unenforceable

The deed contains one “shall” that indicates something that must be done. In paragraph 4(g) the Council promises to register the Deed on one of its registers.

This Deed is a Local Land Charge and shall be registered by the Council in the Council's Register of Local Land Charges immediately on completion thereof

It is always better to use will to make a binding promise. Which brings me to my next point.

Tip #4. Always use the active voice

A document will always read better if the following word order is followed: subject > verb > object.

I will send you the document follows this order, and it reads better than

The document will be sent to you by me.

The draft deed includes a few phrases that could be improved by changing the word order.

This Deed is a Local Land Charge and shall be registered by the Council in the Council's Register of Local Land Charges immediately on completion thereof

It is better to say:

The Council will [not shall] register this Deed in its Register of Local Land Charges as soon as it has been completed.

I have made the following improvements:

1. The active voice is used (subject, the Council; verb, will register; object, the Deed)

2. Will replaces shall.

3. I have used fewer words to achieve the same result, 20 rather than 26,

4. The word thereof has been left out (see the next point) and

5. I have unhidden the verb (see point 1 above). Immediately on completion is now as soon as it has been completed.

Tip #5. Don’t use dated terms

The words hereby, hereof, hereunder, therewith, thereof, therefrom, thereto, and whereof appear in the deed, and they give it the old-fashioned smell of ancient library books. Lawyers have used these words for centuries but there is no need for them - or you - to do so. They can easily be replaced or left out.

outlined in red on the plan attached hereto

becomes

outlined in red on the plan attached to this Deed

The Owner hereby undertakes - the whole Deed is an undertaking, so hereby is not necessary. Leave it out.

In 4(c), where it says:

enforceability of any other provision of this Deed provided severance therefrom is possible

it is not necessary to use the word therefrom (that is, from the Deed). It is quite clear that from the Deed is implied.

The use of each of these dated terms can be avoided. See Lesson X for a list of even more words and how to avoid their use.

The next lesson gives you five more drafting tips on legal writing.