Headings
“Headings are for ease of reference only and shall be ignored in construing this Agreement”
What is it that the legal eagle so distrusts about headings?
If you are anything like the JC, the headings are the only part of the contract you do, with any regularity, read. Headings orient; they provide a superstructure; they provide context in a legal world so crushingly bereft of it. So why exclude them from helping understand what the document might mean? We are at a loss.[1] At best, this provides cover to the miscreant who later claims an interpretation the context — that is, the heading the term sat under — indicates is plainly fatuous.
Look at it the other way: why would lawyers — surely the brain surgeons of language — add words to a legal contract if they wanted them to be ignored? Would a real neurosurgeon, under the hood, make some harmless extra swipes with her scalpel for the sheer hell of it? How, in a world overflowing with unnecessary words, can that be a good idea? At best, this is pure waste.
Look, if you don’t want headings to mean anything, don’t use the damn things, and expect your document to be the kind of grey, unpunctuated entropic sludge of Times New Roman that emanates from every US law firm. Is that really what you want?[2]
If, perversely, you care about getting to “yes”, and therefore your reader’s easy comprehension, use headings to structure your argument. A legal contract is, after a fashion, an “argument”. But do not then complain if your readers expect your argument to follow the framework you have set out for it.
Objections
Now your correspondent is a passionate amateur provocateur, and beyond his wildest aspirations this article, of all the dreck he has put out, has touched a nerve within his community. So let us address some objections:
Through the effluxions of the negotiation process, a clause that started out addressing one topic might wind up addressing something quite different. Even the reverse. What if an “assignment” clause turns into a “no assignment” clause, and someone forgets to amend the title?
Aside from observing that “assignment” would be a serviceable title for a clause about assignment whatever its attitude to the topic — I know, bad example — this strikes as a charter for the negligent; an articulation of the Buttocractic oath for our learned friends.
Isn’t getting the title right — thereby yielding a clear, understandable tract — a basic part of competent drafting? Especially if we grant, for a moment, that the heading is the part of the clause most people are likely to read?
If not, why forgive our legal friends only their bished headings? Why not let them off all the other things they bugger up, too?
That would be a great construction clause:
“Clauses: The text of each clause is for ease of justification of fees only and shall be ignored when adjudicating the competence of the professional advisers who prepared this Agreement.”
See also
- Headings in the ISDA
- Interpretation and construction
References
- ↑ It may be, in times past, the headings were added later by unqualified clerks, or something — I am totally making this up — but that isn’t how things work now.
- ↑ U.S. attorneys: this is a rhetorical question.