CONTRACTS: THE LANGUAGE OF DYSFUNCTION

Ken Adams is the author of ‘A Manual of Style for Contract Drafting’, currently in print in its fourth edition. He is a worldwide authority on the style that English-speaking writers use when drafting commercial contracts and has been an outspoken critic of what he terms the ‘dysfunctional language’ that many British and American lawyers insist upon using. In the introduction to his bestselling book, Mr Adams says the following:

(A) The Purpose of This Manual This manual offers guidelines for clear and concise contract language. If you’re making decisions regarding contract language without consulting it, it’s overwhelmingly likely that you’re copy- and-pasting, relying on flimsy conventional wisdom, or improvising. If you draft contracts and follow the recommendations in this manual, your contracts will be clearer and shorter and will express the transaction more accurately. That will allow you and your organization to save time and money, reduce risk, and compete more effectively.

(B) Using this Manual Internationally English is used in contracts around the world, not just contracts between companies from English-speaking countries. English has become the lingua franca of international business. A Swedish company and a Japanese company might opt to have contracts between them be in English, rather than Swedish or Japanese. And a German company in an international group might require that its contracts with other German companies be in English. But for anyone working with English-language contracts who isn’t a native English speaker, there’s no such thing as a beginner’s level in English-language contracting. A contract must address what’s required for the transaction; no one would accept as a valid excuse that the English of a drafter, reviewer, or negotiator was limited. And the stakes are high.

Anyone drafting contracts in English can safely use this manual. In the prose used, contracts drafted in the United States, the United Kingdom, Australia, and Canada share the same features. Differences in terminology exist but are trivial. For example, whereas Commonwealth drafters use ‘completion’, U.S. drafters prefer ‘closing’. This manual recommends eliminating some of those differences in terminology by dispensing with the Commonwealth usages ‘amongst’ and ‘whilst’, ‘clause’, ‘endeavours’, ‘forthwith’ and ‘procure’. Differences in spelling are likewise trivial. For example, in American English, ‘license’ is both a noun and a verb, whereas in other varieties of English, ‘licence’ is the noun and ‘license’ is the verb.

(C) The Scale of the Dysfunction Contracts drafted without the benefit of rigorous guidelines - most contracts - remain (1) ….. dysfunction. The details differ, but the effect is consistent: readers must (2) ….. a slurry of archaisms, redundancy, (3) ….. verb structures, overlong sentences, and confusing terminology. In short, traditional contract language. It’s not as if the dysfunction of traditional contract language is a problem for only nonlawyers. Everyone is in the same fog, although some are (4) ….. . It doesn’t matter how (5) ….. the law firm, company, or trade group - they mostly (6) ….. dysfunction. The poor quality of their contracts is at odds with the (7) ….. proficiency and dependability that such organizations seek to (8) ….. .

(D) The Primary Cause of Dysfunction A defining characteristic of contract drafting is that each new transaction inevitably resembles previous transactions. It makes sense to copy contracts used in those other transactions, adjusting them as needed to reflect the new transaction. That should be a source of efficiency, but if you’re using word processing, the result is a pathology this manual calls “passive drafting”: (i) you don’t have the time or perhaps the expertise to reassess precedent contracts and templates, so you copy them, on faith, assuming that they worked before and so will work again; (ii) because you’re copying, you don’t need guidelines; (iii) because you’re copying, no one needs to be trained.