A large part of my daily activities involves drafting legal contracts, and recently I have been looking for resources on the best ways to construct contracts and phrase clauses.
One resource that has really caught my attention is A Manual of Style for Contract Drafting, Third Edition, by Kenneth A Adams.
When it comes to constructing clauses for a contract Adams goes much further than other contract drafting books I have read. Where most books give handy guidelines and lists of words to use or avoid using, Adams takes the entire process one step back.
Adams suggests a process where each clause is analysed, and the language used in the clause is determined by the legal outcomes that the parties intend to flow from the clause. He suggests that each clause in a contract has a function, and the language that a clause uses will be determined by this function. For example, a clause that functions to impose an obligation will be distinguished from one that imposes a prohibition or one that provides one party with discretion.
Each type of contractual language must be used consistently throughout a contract.
Adams breaks contractual language into eleven different categories, with each category serving a different function in a contract. These categories are:
- Language of Agreement
- Language of Performance
- Language of Obligation
- Language of Discretion
- Language of Prohibition
- Language of Policy
- Language of Declaration
- Language of Belief
- Language of Intention
- Language of Recommendation
- Expressing Conditions
When drafting a clause you must determine what the clause needs to accomplish and find what the function of the clause is. Once you have determined this then the most appropriate category of language can be used to achieve that function.
The process is not as easy as it seems at first because many clauses can be incorrectly phrased in more than one different contract language. This is illustrated throughout the book in numerous examples. For instance, an obligation to purchase shares can be expressed in various ways:
- The Purchaser shall purchase the Shares…
- The Purchaser must purchase the Shares …
- The Purchaser will purchase the Shares …
- The Purchaser agrees to purchase the Shares …
- The Purchaser undertakes to purchase the Shares …
- The Purchaser shall be obligated to purchase the Shares …
- The Purchaser is obligated to purchase the Shares … (Adams table 2).
By following the approach suggested by Adams a contract becomes more internally consistent in the language used and easier to read and interpret.
Language of Agreement
“The parties agree as follows.”
The language of agreement expresses the parties’ state of mind. This language should only be used once in each contract; in the lead in to a contract (Adams Para 3.16).
It is common to see language of agreement used throughout a contract, often coupled with a statement of fact or an obligation. For example “the parties agree that the material is free from defects… ” or “the parties agree that the seller will deliver the material on 1 January 2016”.
The use of “the parties agree” is redundant in these examples. These clauses are recorded in a contract, which is an agreement by its very nature.
These examples can also be expressed better using other, more appropriate, language. For example, if one party is supposed to be warranting that the material is free from defects then it should be expressed adequately as a warranty. On the other hand, if “agreed” statement is intended to limit one party’s liability if the statement turns out to be true, then again the limitation of liability can be expressed better using other language.
Language of Performance
“The Seller hereby sells the shares to the Purchaser.”
The language of performance expresses actions that are accomplished by signing the contract (Adams Para 3.19).
The word “hereby” could be omitted from the language, but for certainty sake it is recommended that the word is kept because it is both grammatically correct, and it eliminates a possible interpretation that another sale of shares is being referred to (Adams Para 3.21).
Language of Obligation
“The Indemnified Party shall notify the Indemnifying Party of any claim.”
The language of obligation expresses obligations that are imposed on a party (Adams Para 3.44). It is recommended that the word “shall” should be used as the language of obligation (Adams Para 3.44).
In order to check if you have used the word “shall” correctly and consistently throughout a contract, replace the word “shall” with the words “has [or have] a duty to”, and if the sentence still makes sense then chances are that it the word has been correctly used as part of the language of obligation (Adams Para 3.48 and 3.78).
An example of a clause that fails the suggested test is “This agreement shall be interpreted in accordance with the laws of the Republic of South Africa.” It doesn’t pass the “has a duty to” test because it isn’t imposing an obligation on a party. The correct language to use for this particular clause would the language of policy.
Some consideration must be given to whether “shall” is the appropriate word that should be used for obligations, where other alternatives such as “must” and “will” might suffice. It is suggested that “shall” is the most appropriate word to express an obligation (Adams Para 3.62 – 3.72 and 3.108 – 3.111).
Language of Discretion
“The indemnified party may at its expense retain its own co-counsel.”
The language of discretion is used to convey that a party has the discretion to take a specified action (Adams Para 3.141).
When using the language of discretion, it is important to consider if the discretion is limited. If “the Seller may sell the Shares to Bob”, does this preclude the Seller from selling the Shares to anyone else? Care must be taken to avoid possible ambiguity (Adams Para 3.144 – 3.148).
Another consideration is if the discretion given to a party must be exercised in good faith. When considering this, it must be determined if the duty of good faith applies, and if so, if the legal jurisdiction allows this duty to be waived at all (Adams Para 3.169 – 3.183). The use of the term “in its sole and absolute discretion” when is an attempt to waive the duty of good faith that one part owes to another.
The timing of the exercise to the right must also be considered. When can the right be exercised? Can the right only be exercised once, or can it be exercised “on one or more occasions”? (See Adams 3.197 – 3.204)
Language of Prohibition
“The Customer shall not modify the Equipment without the Lessor’s prior written consent.”
The language of prohibition specifies what a party is prohibited from doing (Adams Para 3.223).
Language of Policy
“The laws of the Republic of South Africa govern all matters arising out of this agreement.”
The language of policy is used for rules that the parties must observe, but that don’t need any express action or inaction by a party (Adams Para 3.240).
Verbs in the language of policy must still be expressed in the present tense.
Language of Declaration
“The Seller states that the Equipment is listed in schedule A.”
The language of declaration is used to state facts. There are two different kinds of declarations:
- the statement of a fact that is known by one of the parties; and
- the acknowledgement of a fact by one of the parties (Adams Para 3.271).
It is suggested that only the words “states” or “acknowledges” should be used in the language of declaration, not the often used phrase “represents and warrants” (Adams Para 3.273).
Some thought must, however, be given to the phrase “represents and warrants”. In practice this phrase is used to cover different bases. This is because the breach of a representation and the breach of a warranty give rise to two different legal actions.
In both cases the remedy that is available to a party if the other breaches the contract are:
- rescission (cancellation) of the contract; and/or
- a damages claim to compensate for losses.
The difference between the two lies in the legal basis that the remedies stem from. The breach of a representation gives rise to a delictual remedy based on a misrepresentation, while a breach of a warranty gives rise to a claim based on the breach of contract.
Even though there is a legal difference between a representation and a warranty, both of these statements are a statement of fact. There is a strong argument that the verb that introduces the statement of fact (for example represents or warrants) will not alter whether the statement of fact is a representation or warranty, or both (Adams Para 3.278).
It is recommended that the term “represents and warrants” is not used to introduce a statement of fact, but that the general “the Party states that …” is used.
Language of Belief
“The parties believe that this agreement complies with the requirements of the National Credit Act.”
The language of belief is used to state an opinion that the parties to a contract have about the legal implications of an agreement or clause. This is because it is not up to the parties to decide if the agreement complies with the law, but this will later be determined by a court (Adams Para 3.319).
It has, however been suggested that the language of belief shouldn’t be used, but instead the statement should be stated in the language of declaration, namely to state a fact. This may, however, give rise to a cause of action if the statement of fact proves to be incorrect.
Language of Intention
“The parties intend that the Consultant will be an independent contractor.”
The language of intention is used for aspects of a relationship that can’t be established by the parties and is not in their control, but must be interpreted and determined by the court (Adams Para 3.322).
It may, however, still be useful to record the parties’ intention because a court might take into account the parties stated intention when interpreting the contract (Adams Para 3.330).
Language of Recommendation
“The Company recommends that the Participant consult with their personal legal advisor if …”
This language is used in a situation where a party with greater bargaining power wants to draw the other parties attention to a particular clause or legal consequences (Adams Para 3.332).
“If the Company receives a Notice of Transfer, it shall transfer the Shares.”
A condition refers to a future event that is uncertain (Adams Para 3.260). It should be expressed as an if/then statement. If [the uncertain event occurs], then [a party shall perform a specific obligation].