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5 Key Words to Avoid in Contract Drafting
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5 Key Words to Avoid in Contract Drafting

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Plain English is always preferred in legal writing, especially when it comes to drafting contracts. Using plain English gives clarity of thought, accuracy and avoids ambiguity. Courts mainly decipher the intention of the parties from the words of the contract itself. Therefore, it is important for the terms of the contract to have clarity. This also helps to avoid unnecessary disputes.

Today, archaic styles and phrases are redundant. Some archaic words like hereafter, herein, hereinafter, herewith, hereof etc. can be substituted with a simple “here.” Likewise, words like “aforesaid”, “said”, and “deem” are instances of outdated legal jargon. Using plain English means avoiding confusing redundancies and phrases. For example, authorize and direct, any and all, each and every, future plans, true and accurate. The above-mentioned archaic words do nothing but confuse the reader.

There are certain terms like “may” which should be included in your legal drafting only for discretionary acts.[1] As general advice, when an obligation is intended, ‘may’ must be avoided. [2] When the act is discretionary in nature, without any obligation, you can use “may.” Use “must” if you intend to impose a legal obligation.

There are some terms in the English language that, if not properly used, will lead to ambiguity. Five such terms are listed below.

Shall

“Shall” imposes an obligation to act. According to Black’s Law Dictionary, “shall” means has to, duty to, or is required to. It is one of the most widely misused words in all of legal language. Shall is often confused with a prediction of future action. You can use “will” to predict future action or to create a promise.[3] In contract drafting, the term “shall” is sometimes used in the definitions. For example: ‘‘Securities Act’’ shall mean [read means] the Securities Act of 1933, as amended. Here, the use of shall is inappropriate. The statement should have simply read: ‘‘Securities Act’’ means the Securities Act of 1933, as amended.[4]

Another important point to be borne in mind while drafting contracts is never to use two different terms for the same concept. When “shall” is used in first person (I or we), it signifies something that is expected to happen in the future. When used in second person (you) and third person (he, she, it and they), it refers to a command or promise. Usually, contracts are written in the third person and rarely in second person. Therefore, it is prudent to use “will” to suggest an obligation and “shall” to convey future expectations. Thus, words should be chosen with the context in mind. It is always safe to use “must” or “is” for obligatory provisions.

Can

Usually, “can” signifies the ability or capacity to do something, and in limited contexts, it can be used to imply permission. Often “may” and “can” are used interchangeably. However, when you intend to refer to permission to do something, go with “may” instead of “can.”

Should

“Should” is used to indicate a duty, obligation or propriety of an action. It is typically used when criticizing someone’s actions or as a strong recommendation. Like “may,” “should” implies a duty, rather than a compelling obligation to do the act. Therefore, if you intend to impose a duty or obligation, avoid the usage of “should” in contracts because it results in ambiguity. For example: “You should brush your teeth twice a day.” This is an advisory statement, meaning it is better to brush your teeth twice a day, but it does not impose a duty to brush twice every day.

Because

We use “because” as a conjunction to state a reason or motive. Contracts must be clear and should lay down the rules for the parties. As the term is generally used to explain motive or purposes, it does not normally add any value to the meaning of the contract terms. Thus, other than in the recitals section, it must be avoided.

However

“However” is an adverb and has a similar meaning to “but” or “despite this.” It is often used in the beginning of the sentence to contrast the preceding sentence. The use of “however” should be restricted to creative or comparative writing, as it does not contribute much to the general meaning of the sentence. If and when it is used, it is construed as meaning that the provision that follows is an exception, condition or limitation to another provision.

About the Author

This article was provided by LegalEase Solutions.  LegalEase is a specialized legal research and writing company serving attorneys, law firms and legal departments across the US and beyond since 2004. For more information, please feel free to contact us at 1(877) 712-8003 or email us.

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[1] Bryan Garner, A Dictionary of Modern Legal Usage 552 (2d ed. 1995).

[2] Michèle M Asprey, Plain Language for Lawyers 203 (3d ed. 2003).

[3] Bryan A. Garner, A Dictionary of Modern Legal Usage 941-942 (2d ed. 1995).

[4] www.michbar.org

 

Sources:

www.michbar.org/journal

www.translegal.com/exercise

www.utexas.edu/law/faculty/wschiess/legalwriting

www.info.legalsolutions.thomsonreuters.com

www.archives.gov/federal-register

www.michbar.org/journal/article.cfm

Priyanka Menon
Priyanka Menon

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