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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 responsibility. 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 responsibility. 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 [[ | 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=== | ===Don’t rub their nose in it=== | ||
The JC has a principle of drafting: “[[I never said you couldn’t|''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, | The JC has a principle of drafting: “[[I never said you couldn’t|''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, | ||
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===Personalise=== | ===Personalise=== | ||
It’s so obvious it hardly need be said, but writing in the first and second person is so much more personal than writing in the disembodied third person. | It’s so obvious it hardly need be said, but writing in the [[First person|first]] and [[second person]] is so much more ''personal'' than writing in the disembodied [[third person]]. | ||
The main objection is that “[[we]]” is ambiguous (it could refer to the party writing the contract, or to ''both'' parties to the contract) but this strikes us as an admission of an underdeveloped facility with English than a material legal objection. For we manage it in ordinary conversation without being perpetually confused — if it were otherwise, “we” would not be the popular pronoun it is. The secret is ''context''. A certain type of lawyer ''fears'' context: to rely on a correspondent’s grasp of context is to leave open a door to wilful or wanton misconstrual that most lawyers would pray remained soundly shut. | |||
This is to misplace one’s trust, in any case. If you have less faith in your customers’ common sense — or a judge’s — than in the baroque, leaden drafting of your legal eagles, then you are asking to come a cropper: the JC’s proposition is that [[Little old ladies make bad law|''little old ladies make bad law'']]: generally, courts will fall over themselves to read convoluted drafting in favour of the little guy. | |||
{{ref}} | {{ref}} | ||