Principles and Conventions of Effective Drafting
Principles and Conventions of Effective Drafting
Content
1. Document should aim to give effect to the client’s objectives and instructions
- What is the purpose of the document?
- What is it to achieve and what are the client’s aims and needs?
- What could go wrong?
- What other options are available that the client has not considered?
2. Document should contain all relevant facts and information
- Who is to perform the obligation?
- What is obligation is to be performed?
- When is the obligation to be performed?
- Where is the obligation to be performed?
- Whom is the obligation to be performed?
- What if ie what are the consequences of a failure to perform the obligation
Example:
You are acting for the buyer of a residential property. The seller and buyer have agreed that the seller will be taking a fireplace with it when it leaves.
It is anticipated that the removal will cause some damage to the surrounding plasterwork.
Please draft an appropriate clause on behalf of the buyer, to be inserted in the contract for the sale of the property which deals with the relevant
issues here.
The seller shall take the fire place in the [XXXX] room and shall make good any damages caused to the remainder of the property before
completion
3. Your document should accurately address all relevant legal issues
- Certain legal terms may need to be included to protect the client’s position.
- Think about statutes as to whether the lack of statute may affect the validity and applicability of the document and if they are not included,
loss to the client and/or unnecessary litigation may result.
- The Sale of Goods Act 1979 for example incorporates implied terms unless they are expressly excluded.
Employment contract Share purchase agreement
Potential covenant from an employee entering into competition with Are any restrictions on selling shareholders to compete with the
your client following their termination and whether this covenant business of the target company required to protect the buyer and how
satisfies the reasonableness test to be enforceable. such restrictive covenants should be drafted to ensure they are
enforceable
4. Your document should meet formal drafting requirements such as Land Registry docs or Civil Litigation CPR compliance
Types of contract:
1. A contract/agreement under hand (not a deed)
2. A deed (requires additional execution formalities)
- This includes transactions relating to land, mortgages, power of attorney
- These have a limitation period for action of 12 years rather than 6
- Does not require valuable consideration for the document to binding
5. Document should protect client’s interests and objectives
- Understand the transaction and how it works
- Consider the practicalities, potential eventualities and risks but find a balance of fairness between both parties
6. Document should be clear and consistent
- References to persons and things should be made throughout and defined
- Do not refer once to the Buyer and then the Purchaser, keep it consistent.
Example:
“The Company may be dissolved with the consent of all its shareholders, provided that any member of the company desiring a
dissolution shall give notice in writing to all the other Members.”
The Company may be dissolved if all of its members agree. Any member proposing that the Company be dissolved shall give notice
to all other members.
1
, Principles and Conventions of Effective Drafting
Structure
1. Document should be clearly laid out and should categorise material logically with the use of clause headings
- It helps to draw a skeleton outline of the document by identifying the main provisions
- Headings make a document easier to read.
- Clauses should be limited to specific topic and should not be mixed with other subject matter.
- Two or more unconnected ideas which relate to the same subject or clause heading should be dealt with under separate sub-
clauses or paragraphs.
2. Use tabulation to break up long sentences
Example
How can you improve the drafting of this clause?
“15. Termination
The Company is entitled to terminate the contract on immediate written notice to the Contractor if the Contractor is in material
breach of this Agreement, a liquidator, administrator or administrative receiver is appointed in respect of the Contractor or any of the
representations made in clause [ ] proves to have been incorrect or misleading as at the date of this Agreement, such notice will be
delivered to the Contractor at [address], or by facsimile to [fax number] or by email to [email address] or to such other address,
facsimile number or email address as the Contractor may notify to the Company from time to time.”
15. Termination
15.1 The Company may terminate the contract on immediate written notice to the Contractor if:
a) if the Contractor is in material breach of this Agreement;
b) a liquidator, administrator or administrative receiver is appointed in respect of the Contractor; or
c) any of the representations made in clause [ ] proves to have been incorrect or misleading as at the date of this Agreement.
15.2 Notice give under clause 15.1 will be delivered to the Contractor:
a) at [address];
b) by facsimile to [fax number];
c) by email to [email address]; or
d) to such other address, facsimile number or email address as the Contractor may notify to the Company from time to time.
Numbering
by the conventional system (alphanumeric system) by the modern system- decimal
- Clauses 1,2,3 etc - 1
- Subclauses (A)(B)(C) - 1.1, 1.2
- Paragraphs (i)(ii)(iii) - 1.1.1, 1.1.2, 1.1.3
- Sub-paragraphs (a)(b)(c)
- Sub-sub paragraphs (1)(2)(3)
3. Definitions and schedules
- Usually definitions are the first clause in a contract to avoid the constant repetition of terms or reference throughout
- Definition list should be in alphabetical order and defined terms are spelt with a capital letter.
- EG, “Premises means the Buyer’s premises located at 169, Hetton Road, Leeds, LS8 3AF.” (From here just use “Premises”)
4. Document should avoid conflicting provisions
- If two provisions appear to conflict, this will need to be amended.
- EG Clause 3 of an agreement states that the agreement will run for a fixed period of twelve months. Clause 9 of the same
agreement lists the events giving rise to a right to terminate the agreement early. Clause 3 should be amended to ‘subject to
2
, Principles and Conventions of Effective Drafting
clause 9’.
Style and Language
1. Document should be drafted in a style which is clear, precise and easy to understand.
- Use short and simple familiar words.
- Use the correct tense.
Shall should be used in the imperative sense to impose an obligation
Must can be used in the context of imposing duties or obligations.
May can be used to create rights or options.
- Avoid clauses which are too complicated.
- Avoid archaic terms and legalese
- Avoid redundant pairs:
“alter or change”, “any and each”
- Use the same terms and get the plurals right
- Take care when drafting dates and times
“The office is closed from 27 August to 31 August”, this can be confusing as to where the office
is open on the 27th and 31st .
Use the words, “from and including” or “from and excluding”
“On or before” rather than “by”
“After” or “from and excluding” rather than “from”
“to and including” or “to but excluding: rather than “until” or “to”
When using “between” clarify where the period is inclusive or exclusive of the first and last
days
- Beware of drafting the excluded middle
“Expenses under £100 must be authorised by X and expenses over £100 must be authorised by
Y” well who authorises expenses of £100 exactly>
Use the expression, “£100 or under” or “£100 and over”.
- Beware of uncertain periods
“The Buyer shall pay for the Goods within 21 days”… within 21 days of what? Date of delivery?
Date of receipt of invoice?
- Meanings of “Subject to”, “notwithstanding” and “without prejudice to”
If Clause A states subject to Clause B, then Clause B overrides A
If Clause A states notwithstanding Clause B, A overrides B. This can be the same for “… any
other provision in this agreement”
Be careful with two clauses starting “notwithstanding any other provision in this agreement” as
they may conflict
If Clause A is “without prejudice to Clause B”, nothing in Clause A hinders the effectiveness of
Clause B.
- “And” and “or”
And is usually conjunctive whereas Or is disjunctive
- Use of “reasonable and “best” endeavours
Best endeavours means the party must take every step it reasonably can to fulfil the
contractual obligation. A party does not have to take a step which is commercially
disadvantageous.
Reasonable endeavours means a party can take some and not all of the steps.
2. Use the active voice and not the passive voice
- The active voice puts the doer before the verb ie “the Buyer shall pay for the Goods” as opposed to “the Goods shall be paid for
by the Buyer”
3. Proof read for grammar, punctuation and spelling.
3
Principles and Conventions of Effective Drafting
Content
1. Document should aim to give effect to the client’s objectives and instructions
- What is the purpose of the document?
- What is it to achieve and what are the client’s aims and needs?
- What could go wrong?
- What other options are available that the client has not considered?
2. Document should contain all relevant facts and information
- Who is to perform the obligation?
- What is obligation is to be performed?
- When is the obligation to be performed?
- Where is the obligation to be performed?
- Whom is the obligation to be performed?
- What if ie what are the consequences of a failure to perform the obligation
Example:
You are acting for the buyer of a residential property. The seller and buyer have agreed that the seller will be taking a fireplace with it when it leaves.
It is anticipated that the removal will cause some damage to the surrounding plasterwork.
Please draft an appropriate clause on behalf of the buyer, to be inserted in the contract for the sale of the property which deals with the relevant
issues here.
The seller shall take the fire place in the [XXXX] room and shall make good any damages caused to the remainder of the property before
completion
3. Your document should accurately address all relevant legal issues
- Certain legal terms may need to be included to protect the client’s position.
- Think about statutes as to whether the lack of statute may affect the validity and applicability of the document and if they are not included,
loss to the client and/or unnecessary litigation may result.
- The Sale of Goods Act 1979 for example incorporates implied terms unless they are expressly excluded.
Employment contract Share purchase agreement
Potential covenant from an employee entering into competition with Are any restrictions on selling shareholders to compete with the
your client following their termination and whether this covenant business of the target company required to protect the buyer and how
satisfies the reasonableness test to be enforceable. such restrictive covenants should be drafted to ensure they are
enforceable
4. Your document should meet formal drafting requirements such as Land Registry docs or Civil Litigation CPR compliance
Types of contract:
1. A contract/agreement under hand (not a deed)
2. A deed (requires additional execution formalities)
- This includes transactions relating to land, mortgages, power of attorney
- These have a limitation period for action of 12 years rather than 6
- Does not require valuable consideration for the document to binding
5. Document should protect client’s interests and objectives
- Understand the transaction and how it works
- Consider the practicalities, potential eventualities and risks but find a balance of fairness between both parties
6. Document should be clear and consistent
- References to persons and things should be made throughout and defined
- Do not refer once to the Buyer and then the Purchaser, keep it consistent.
Example:
“The Company may be dissolved with the consent of all its shareholders, provided that any member of the company desiring a
dissolution shall give notice in writing to all the other Members.”
The Company may be dissolved if all of its members agree. Any member proposing that the Company be dissolved shall give notice
to all other members.
1
, Principles and Conventions of Effective Drafting
Structure
1. Document should be clearly laid out and should categorise material logically with the use of clause headings
- It helps to draw a skeleton outline of the document by identifying the main provisions
- Headings make a document easier to read.
- Clauses should be limited to specific topic and should not be mixed with other subject matter.
- Two or more unconnected ideas which relate to the same subject or clause heading should be dealt with under separate sub-
clauses or paragraphs.
2. Use tabulation to break up long sentences
Example
How can you improve the drafting of this clause?
“15. Termination
The Company is entitled to terminate the contract on immediate written notice to the Contractor if the Contractor is in material
breach of this Agreement, a liquidator, administrator or administrative receiver is appointed in respect of the Contractor or any of the
representations made in clause [ ] proves to have been incorrect or misleading as at the date of this Agreement, such notice will be
delivered to the Contractor at [address], or by facsimile to [fax number] or by email to [email address] or to such other address,
facsimile number or email address as the Contractor may notify to the Company from time to time.”
15. Termination
15.1 The Company may terminate the contract on immediate written notice to the Contractor if:
a) if the Contractor is in material breach of this Agreement;
b) a liquidator, administrator or administrative receiver is appointed in respect of the Contractor; or
c) any of the representations made in clause [ ] proves to have been incorrect or misleading as at the date of this Agreement.
15.2 Notice give under clause 15.1 will be delivered to the Contractor:
a) at [address];
b) by facsimile to [fax number];
c) by email to [email address]; or
d) to such other address, facsimile number or email address as the Contractor may notify to the Company from time to time.
Numbering
by the conventional system (alphanumeric system) by the modern system- decimal
- Clauses 1,2,3 etc - 1
- Subclauses (A)(B)(C) - 1.1, 1.2
- Paragraphs (i)(ii)(iii) - 1.1.1, 1.1.2, 1.1.3
- Sub-paragraphs (a)(b)(c)
- Sub-sub paragraphs (1)(2)(3)
3. Definitions and schedules
- Usually definitions are the first clause in a contract to avoid the constant repetition of terms or reference throughout
- Definition list should be in alphabetical order and defined terms are spelt with a capital letter.
- EG, “Premises means the Buyer’s premises located at 169, Hetton Road, Leeds, LS8 3AF.” (From here just use “Premises”)
4. Document should avoid conflicting provisions
- If two provisions appear to conflict, this will need to be amended.
- EG Clause 3 of an agreement states that the agreement will run for a fixed period of twelve months. Clause 9 of the same
agreement lists the events giving rise to a right to terminate the agreement early. Clause 3 should be amended to ‘subject to
2
, Principles and Conventions of Effective Drafting
clause 9’.
Style and Language
1. Document should be drafted in a style which is clear, precise and easy to understand.
- Use short and simple familiar words.
- Use the correct tense.
Shall should be used in the imperative sense to impose an obligation
Must can be used in the context of imposing duties or obligations.
May can be used to create rights or options.
- Avoid clauses which are too complicated.
- Avoid archaic terms and legalese
- Avoid redundant pairs:
“alter or change”, “any and each”
- Use the same terms and get the plurals right
- Take care when drafting dates and times
“The office is closed from 27 August to 31 August”, this can be confusing as to where the office
is open on the 27th and 31st .
Use the words, “from and including” or “from and excluding”
“On or before” rather than “by”
“After” or “from and excluding” rather than “from”
“to and including” or “to but excluding: rather than “until” or “to”
When using “between” clarify where the period is inclusive or exclusive of the first and last
days
- Beware of drafting the excluded middle
“Expenses under £100 must be authorised by X and expenses over £100 must be authorised by
Y” well who authorises expenses of £100 exactly>
Use the expression, “£100 or under” or “£100 and over”.
- Beware of uncertain periods
“The Buyer shall pay for the Goods within 21 days”… within 21 days of what? Date of delivery?
Date of receipt of invoice?
- Meanings of “Subject to”, “notwithstanding” and “without prejudice to”
If Clause A states subject to Clause B, then Clause B overrides A
If Clause A states notwithstanding Clause B, A overrides B. This can be the same for “… any
other provision in this agreement”
Be careful with two clauses starting “notwithstanding any other provision in this agreement” as
they may conflict
If Clause A is “without prejudice to Clause B”, nothing in Clause A hinders the effectiveness of
Clause B.
- “And” and “or”
And is usually conjunctive whereas Or is disjunctive
- Use of “reasonable and “best” endeavours
Best endeavours means the party must take every step it reasonably can to fulfil the
contractual obligation. A party does not have to take a step which is commercially
disadvantageous.
Reasonable endeavours means a party can take some and not all of the steps.
2. Use the active voice and not the passive voice
- The active voice puts the doer before the verb ie “the Buyer shall pay for the Goods” as opposed to “the Goods shall be paid for
by the Buyer”
3. Proof read for grammar, punctuation and spelling.
3
