Contracts Part III: The Role of Legalese in Contract Drafting
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3. Familiarity May Breed Contempt but There is Something to be Said for Familiarity
The problem with introducing new language into a draft contract is that one’s negotiation counterpart, who is not necessarily familiar with it, will then have to take the extra time to review it, which can waste time.
Standard—boilerplate– formulations, as archaic as they may be, continue to be inserted into contracts because the drafters are familiar with the language even if the clients are not.
Provisions that turn up in almost all contracts, such as Severability Provisions, Assignment and Succession Provisions, Integration Clauses, Modification and Waiver Clauses, Counterparts Provisions, Governing Law and Dispute Resolution Clauses, generally, employ language that would be familiar to a 19th Century draftsman, the upshot being that the language is well established in legal understanding and may even enjoy support in legal precedents.
This is not to say that clients should simply defer to their attorneys when the language becomes too difficult to understand. Quite to the contrary, they should ask questions, because sometimes even boilerplate provisions can become materially important. Rather than simply deferring the consideration of the language to counsel, clients should ask their attorneys to summarize in lay language the meaning that lies behind the boilerplate.
4. Clarity where Possible
As explained above, formal legal verbiage has its uses and sometimes is preferable over language that might at first blush seem clearer, but for the most part contract language should be accessible to the contract principals.
The contract should clearly and concisely track the proposed deal, and a third party, unfamiliar with the contract and the background of the negotiations, should be able to read and understand it. Clients should be rigorous about having their attorneys write simply and clearly as required.
Employing Legalese should remain the exception rather than the rule.
Related articles:
Small Business Contracts Part I: A Different Perspective
Contracts Part II: Laying the Groundwork
When Is an Oral Contract a Legally Binding Agreement?
