Drafting principles

Drafting principles

• Draft for an ordinary reader, not a lawyer (or a judge)
• Agreement should be capable of:
  • Negotiation by a non*lawyer
  • Day-to-day interpretation by operations staff

Structure

• Key principles
• Main operational provisions
• Boilerplate
• Definitions
  • Keep to a minimum and avoid where possible
  • Defined terms used throughout the agreement, at the back
  • Where used in a single Section, inline in the section

Layout

• Consider using 2 columns to moderate line length (see below)
• Agree an effective numbering convention and use it consistently
  • All levels should be numbered – even “orphans”
• Split agreements into sections
• Definitions bold, no quotation marks.
• No “this page is intentionally left blank” or “Intentionally deleted”.
• Format for maximum readability assuming both screen and print use.
  • Font: Use fonts that are freely available on common operating systems
    • serif fonts for body text;
    • sans-serif for headings.
  • Size: Body text: 10-11 point.
  • Leading: 6-8 points larger than type size (so for 11pt body text, 16-19pt)
  • Line Length/Columns: Optimal line length is 50-60 characters per line (query whether therefore the document should be typeset in two columns)
  • Margins: sufficient to yield an average line length of 50-60 characters per line (see above)

Content

• Keep boilerplate to a minimum.
• Include general principles to avoid repeating the same tropes
  • “Subject to applicable law”
  • Parties to act in “good faith and commercially reasonable manner” unless otherwise indicated
  • Acts include omissions
  • Parties includes officers and employees
  • Agreements, legislation is as amended.
• Contain only legal obligations.
  • Exclude descriptions and disclaimers.
• Do not state things which are true as a matter of law
  • “unless the parties agree otherwise…”
  • “This Agreement … takes effect when you signify acceptance of this Agreement”

Expression

• Use short sentences
  • Aim for a 20-word maximum.
  • Break long sentences into short ones.
• Use short paragraphs
  • Break long paragraphs into multi-level sub-paragraphs (See layout above)
  • Enumerate at the end of a clause, never at the beginning or middle (i.e. avoid unnumbered “dangling flush text”).
• Use strong verbs; avoid nominalisation: eg
  • “instruct us on your behalf” and not “act on your behalf in the giving of instructions to us”
  • “breach the contract” and not “commit a breach of the contract”;
  • “judge”, not “pass judgment upon”;
  • “indemnify” and not “provide an indemnity in respect of”
• Prefer the active to the passive
• Prefer the positive to the negative
• Avoid double negatives
• Avoid provisos
• Avoid over-particularisation:
  • Avoid unnecessarily conferring options that are not excluded by the agreement in the first place
  • Avoid disclaiming responsibility for persons who would not otherwise have it.
  • Strike non-limiting language: eg

 “whether or not…”,  “(whether … or otherwise)”,  “irrespective of…”  “including …”;  “without limitation”  “without prejudice to the generality of the foregoing…”  “for the avoidance of doubt …”  “either in whole or in part”

• Use expressions consistently
  • Obligations: “must” (not “shall”, “will”, “shall be obliged to…” etc)
  • Options: “may” (not “shall be entitled to”, “may, but shall not be obliged to…”)
• Strike legal comfort blankets: eg
  • Avoid “provided that”
  • Avoid “shall”
  • Avoid “herein”, “aforesaid”, “hereunder” etc.
  • Avoid “without prejudice”.
  • Avoid “or any part thereof”
  • Avoid “it is hereby agreed that”
  • Avoid “subject to clause X”
  • Avoid “unless otherwise agreed”
  • Avoid “under this agreement”.
  • Avoid “and/or”
  • Avoid “deemed”
  • Avoid “expressly” – if it is written down it is by definition express.
• Use simple expressions:
  • Why say “Prior to” when you mean “before”?
    
  • Why say “In the event that” when you mean “if”?
    
  • Why say “pursuant to” when you mean “under”?
    
  • Why say “Shall be entitled to” when you mean “may”?
    
  • Why say “On a regular basis” when you mean “regularly”?
    
  • Why say “Have regard to” when you mean “consider”?
    
  • Why say “Have the right to” when you mean “may”?
    
  • Why say “Be required by regulatory rules to” when you mean “must”?
    
  • Why say “As agent on your behalf” when you mean “as your agent”?
    
  • Why say “For the purposes of” when you mean “under”?
    
  • Why say “In accordance with” when you mean “in/under”?
    
• Avoid doublets and triplets
  • Why say “Exclude or restrict” when you mean “restrict”?
    
  • Why say “Do or fail to do” when you mean “do”?
    
  • Why say “Transaction effected by or cleared for you” when you mean “your Transaction”?
    
  • Why say “trading recommendations, market commentary or other information” when you mean “information”?
    
  • Why say “transfer or propose to transfer” when you mean “propose transfer”?
    
  • Why say “officers, employees or agents” when you mean “personnel”?
    
  • Why say “You agree and acknowledge” when you mean ““””?