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*Unnecessary definitions: Resist the temptation, which many legal eagles cannot, to define every variable term in your contract. The simply apppearance of adefinition - the brackets, quotes, and bold — punctuates your text with an air that we are lot leaving anything to chance in the face of an opportunistic cad such as you. That is not an impression one normally likes to give to ones customer, and it may have the unintended consequence that your customer sees it as an invitation to ''be'' opportunistic, should there be any holes in your punctillaiety, or at the very least to push back wherever it feels you have drawn your boundaries too widely. Needless to say ''any'' time spent negotiating clarifications is time wasted; time spent arguing about the definition of “the customer” is positively damaging. | *Unnecessary definitions: Resist the temptation, which many legal eagles cannot, to define every variable term in your contract. The simply apppearance of adefinition - the brackets, quotes, and bold — punctuates your text with an air that we are lot leaving anything to chance in the face of an opportunistic cad such as you. That is not an impression one normally likes to give to ones customer, and it may have the unintended consequence that your customer sees it as an invitation to ''be'' opportunistic, should there be any holes in your punctillaiety, or at the very least to push back wherever it feels you have drawn your boundaries too widely. Needless to say ''any'' time spent negotiating clarifications is time wasted; time spent arguing about the definition of “the customer” is positively damaging. | ||
*Pedantic clarity tics: Expressions, which finance lawyers love, like “[[any and all]]”, “[[one or more]]”, “[[whether or not]]”, “[[including without limitation]]”, “[[unless otherwise agreed in writing|unless expressly agreed in writing]]” betray not only a lack of confidence in the plain meaning of words, but a lack of trust in the intentions of your customer. | *Pedantic clarity tics: Expressions, which finance lawyers love, like “[[any and all]]”, “[[one or more]]”, “[[whether or not]]”, “[[including without limitation]]”, “[[unless otherwise agreed in writing|unless expressly agreed in writing]]” betray not only a lack of confidence in the plain meaning of words, but a lack of trust in the intentions of your customer. | ||
===Allocate responsibility, not liability=== | ===Allocate responsibility, not liability=== | ||
Put things in the positive. Rather than cataloguing the things one shall, or shall not be liable for — which presents breach of contract as the operating presumption — allocate responsiblity. So, instead of “we accept no liability for our advice or the content of anything we say or do ...” say “you accept responsibility for the decision whether to execute and will obtain such independent advice as you consider necessary to assessing the merits of the transaction”. | Put things in the positive. Rather than cataloguing the things one shall, or shall not be liable for — which presents breach of contract as the operating presumption — allocate responsiblity. So, instead of “we accept no liability for our advice or the content of anything we say or do ...” say “you accept responsibility for the decision whether to execute and will obtain such independent advice as you consider necessary to assessing the merits of the transaction”. | ||
That said, be clear about who is responsible. The legal eagle’s great crutch the passive can let you down. Not only do passives drain energy from your writing, and make it harder to read, they often obscure (or fudge) who is responsible for | That said, be clear about who is responsible. The legal eagle’s great crutch the passive can let you down. Not only do passives drain energy from your writing, and make it harder to read, they often obscure (or fudge) who is responsible for | ||
===Don’t rub their nose in it=== | |||
The JC has a principle of drafting: “[[I never said you couldn’t]]”. Don’t stipulate things in a contract that are, as a matter of law, true in any case. So, for example, | |||
{{quote|“You will be responsible for and we shall not accept any liability for, your own costs of performing the Transaction”}} | |||
There are at least three reasons not to say this: First, it goes without saying and therefore takes up space. In a busy world overstuffed with legal contracts in need of reading, that should be reason enough not to include it. | |||
Second, it states a faintly unpalatable reality — undeniable though it may be, no-one likes a downer, so why take it upon your self to be the messenger of unwelcome news, however inevitable. ''[[Don’t be that guy]]''.Remember, your best case scenario as a messenger of boring news is ''you don’t get shot''. | |||
Third, it ''obliges'' your counterparty to read it, and ''invites'' her lawyer to fiddle with it. That ornamentation ''might'' be harmless, but simply [[tedious]] — [[for the avoidance ofd coubt]] — but it might not: “except in the case of the service provider’s fraud, negligence of wilful default...” It might even give her some ideas that she should for some reason not'' be responsible for her own costs of the transaction; ideas that had ''you'' not mentioned it, would not have popped into her head. But in no case will it be beneficial to you or your client. | |||
===Personalise=== | ===Personalise=== | ||