Summary
Summary Drafting Tutorial/Seminar Notes
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- University Of Law (ULaw)
Drafting Tutorial/Seminar Notes Assessment Notes incorporated
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DraftingAssessed
Read Chapter 1 of the Skills of Lawyer book:
Good writing and drafting requires a four stage process:
1. Preparation and research –
a. Taking full instructions, undertake any further enquiries which are needed,
identify any objectives and everything you need to know (clients may not know
everything which is why they are coming to you). Understand what your client
wants to achieve and understand the relevant facts.
b. Research the law
2. Planning – deciding the best structure and necessary content.
Common document structure will include: commencement (nature of the
document e.g. “this agreement”, “this conveyance”, “deed of conveyance”);
date (space should be left to insert date of when document is completed);
parties ((1) = x party (2) = y party. Full names and address of parties should be
included – companies include the registered office. address); recital clauses
(not essential and should consider whether to include or not. Can use to set
out background facts to document so its self-explanatory. Used to introduce
and summarise contents of the operative part of the document – not use in
complicated documents); operative part (this notes the legal rights and
obligations). Contents will depend on the nature of document. E.g. Commercial
agreement will include conditions precedent, agreements, representations and
warranties, and billet plate clauses); testimonium (not essential but if used, it
introduces the signatures of the parties and may describe a particular method
of executing e.g. attorney signing on behalf of a party); schedules (use when
appropriate to avoid breaking continuity of a document with too much detail.
Operative part may refer to a schedule and then the schedule contains the
detail. E.g. operative part is “tenant convents with the landlord to observe and
perform covenants set out in Schedule 1. Then in schedules Schedule 1
is ...”); execution and attestation (document will end with an execution clause-
refer to signatures of parties – this will vary depending on nature of party
executing (attestation means witnessed).
o E.g.
For a document executed by an individual and not intended to take effect
as a deed, the clause could read:
Signed by ALAN JONES ) (Alan Jones signs here)
in the presence of: )
(Witness signs here)
If the document is intended to take effect as a deed the clause could read:
Executed as a deed ) (Alan Jones signs here)
by ALAN JONES )
in the presence of: )
(Witness signs here)
Order of clauses in operative part –
o One way is listening topics in chronological order (suitable for document
with one simple transaction). E.g. contract for hire of a car – order will be:
parties, definitions, agreement by owner to hire out to hirer on the terms
set out in the agreement; payment; insurance; promises by owner as to
the state of the car at the start of the hire; duration of hire; what the car
can be used for; who may drive; hirers promises as to the return of the
, car; remedies for breach of agreement. Better doing this then dividing
topics into Owners obligations and Hirers obligations
o Another way is categorical order – this sets out duties and responsibilities
in categories. E.g. lease – structure of typical lease is parties; definitions
grant of term by landlord to tenant; tenant covenants; landlord’s
covenant’s; provisos e.g. landlords power to forfeit the lease. Essential to
divide landlords and tenants obligations as they have to be performed
throughout entire term of lease – no chronological order for them.
o Another way is order of importance – simple contract e.g. agreement
between employer and employee on severance of employment.
o Another way is combination of the above e.g. a contract with a firm of
furniture removers could list firm’s obligation in order such as: to pack
contents of the house; to transport storage; to sore; transport to new
house; to unpack – then list owners obligations.
Structuring clauses –
o Use separate clause for each separate matter
o Use sub paragraphing to avoid long clauses and provisos
o Number each clause and sub clause
o Give each clause or group of clause a heading the defines subject matter
e.g. tenants covenant.
o A clause should be structured in the following order:
circumstances/exceptions (ie, circumstances where the right or
obligation does or does not exist); Words suitable for introducing
circumstances are ‘where ...’ ‘if ... then’ or ‘when ...’ or ‘on ...’. Words
suitable for introducing an exception are ‘except where ...’.
conditions (ie, conditions on which the right or obligation depends);
Words suitable for introducing conditions are ‘if ...’ or ‘provided
that ...’.
obligation or right (ie, who must do what or who may do what).
Using precedents
o Look for a precedent only after you have researched and planned your
document.
o Always check that the precedent is up to date and legally correct.
o Adapt the precedent to your transaction, not your transaction to the
precedent.
o Do not copy words from a precedent unless you are sure of their legal
effect.
o Do not change words in a precedent unless you are sure that the change
will not have an unexpected legal effect. This is particularly true of
precedents for wills.
o Never assume a precedent cannot be improved.
o Do not copy clauses that are irrelevant or, worse, are to the
disadvantage of your client;
o Do not adopt inappropriate or archaic wording.
3. Drafting – clearly and concisely setting out information or points following your
plan. Should be unambiguous and precise.
Using definitions –
o Can create “tag” or “nickname”- allows you to avoid repetition of lengthy
names or phrases e.g. Everett Kingdom Finance plc (“Everett”) and then
refer to the nickname/tag throughout doc e.g. “Everett instead of Everett
Kingdom Finance plc. Used in short and simple documents.
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