Lesson 7: 10 tips to improve your contract drafting Part 2

Tip #6. Don’t separate parts of a verb by a long phrase

In clause 2.(b)(i) the verb form shall notify is split by this 14-word phrase

within 10 working days of taking up use and/or occupation of the Residential Unit

Those words tell the reader when something must be done (within 10 days) before telling them what must be done (notify the council). The reader must hold in their memory part of the verb (shall) while they read something else (what must be done) before they find out what they must do (notify). This is rude behaviour towards the reader. The clause can be improved by drafting as follows:

Each new occupier must inform the Council in writing within ten working days of the change of occupation of the Residential Unit.

Tip #7. Be consistent

It helps the reader when you use the same form of words when referring to the same kind of document.

The Deed refers to seven separate Acts, and it uses five different ways to refer to their statutory provisions:

1. pursuant to the Town and Country Planning Act 1990,

2. under s106 of the Town and Country Planning Act 1990

3. the provisions of the Contracts (Rights of Third Parties) Act 1999

4. as defined by section 56(4) of the 1990 Act, and

5. for the purposes of the 1990 Act.

It helps the reader if the same words are used every time that a statute is referred to, and the preferred way is to say “under” whenever statutory powers are mentioned.

Tip #8. Don’t use capital letters for whole words or clauses

The draft deed uses capital letters from beginning to end:

THIS UNILATERAL UNDERTAKING

WITH THE CONSENT OF

BY

TO

WHEREAS

NOW THIS DEED WITNESSETH

PROVIDED THAT

IT IS HEREBY AGREED and DECLARED (for some reason, the “and” did not need caps)

Lawyers’ use of capital letters is very old and goes back to the time when whole documents were made up of a one or two very long sentences and the WORD IN CAPITALS showed the reader where a new section started and what it was about. We now have word processors that easily number paragraphs and add emphasis by italics and bold fonts.

Short sentences and paragraphs assist the reader. Capitalised words SHOUT at the reader.

Tip #9. Don’t use too many words

You will automatically save words by following Tips #1 to #5.

After writing a sentence, especially when doing so in a second language, reread it to see how your first draft can be improved by removing words that don’t add anything of importance to the sentence.

As an example, look at the undertaking in paragraph 2.(c) on page 3.

on the date hereof to pay to the Council the Council’s legal costs incurred in the preparation and completion of this Deed in the sum of seven hundred and fifty pounds (£750)

That’s 32 words to say:

to pay the Council £750 costs to prepare and complete this Deed (12 words).

We have saved words by:

• avoiding repetition. There’s no need to write “the Council” twice.

• uncovering the verb (see Tip #1): in the preparation and completion of simply means to prepare and complete.

• referring to money once: the words in the sum of are unnecessary. There is no need to spell out the cost in words as well as numbers. Just make sure the number in figures is correct.

Paragraph 4(m) on page 4 starts with:

In the event of the Planning Permission being revoked …

It is so much easier to say

If the Planning Permission is revoked …

Paragraph 4(j) states:

this Deed shall only be capable of being varied by a memorandum …

It is much better to say:

this Deed may be varied only by a memorandum …

Tip #10. Use punctuation properly and consistently

Sentences end with a full stop. (Americans use the word period.) The draft deed has just two sentences ending with a full stop.

Commas should be used to break up a list, and to mark a separate clause in a sentence. The draft deed follows these rules sometimes but, in the majority of cases, it does not.

The covenants undertakings and restrictions contained in this Deed

requires commas as it is a list. So does

The expressions “the Council” “the Owner” and “the Mortgagee”

and

The construction validity and performance of this Deed shall be governed by English law

This sentence has two lists:

and its rights powers duties and obligations under all public and private statutes bye-laws and regulations.

This is how they should be punctuated, using commas to break up the separate items in the list:

The covenants, undertakings, and restrictions contained in this Deed

The expressions “the Council”, “the Owner”, and “the Mortgagee”

The construction, validity, and performance of this Deed shall be governed by English law

and its rights, powers, duties, and obligations under all public and private statutes, bye-laws, and regulations.