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 ““””?