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1988

Tips for Drafting Contracts Martin Frey

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Recommended Citation 5 J. of Paralegal Ed. & Practice 55 (1988).

Tips for Drafting Contracts

MARTIN A. FREY*

Some contracts must be in writing to be enforceable. Others are en- forceable without a writing.I Even those contracts that do not need to be in writing often are written. 2 This article briefly discusses the art of draft- ing a written contract.3

Drafting contracts involves skills that can be developed and honed. The ability to write well is the most valuable tool a paralegal can acquire. The following material provides some suggestions for drafting a well-written contract. These suggestions also apply to drafting well-written memoran- da and briefs. Reflect upon your own writing. Can some of these tips im- prove your writing?

A. Draft from an Outline

Before drafting, develop an outline for the contract. An outline helps the drafter present the terms of the contract in a logical, orderly fashion. An outline prevents the omission or duplication of essential terms.

Begin the outlining process by defining the purpose of the contract. Next, following the organizational structure of the law of contracts, develop a checklist of items that the contract might or should address.

* Professor of Law, The University of Tulsa. This article first appeared as a chapter in "In- troduction to Contracts and Restitution for Paralegals," by Martin A. Frey and Terry H. Bitting, West Publishing Co. (1988). Adapted by permission from CoNTRAcTs AND REsTIrroN FOR PARALEGAis BY MARTiN A. Fanv AND TERRY H. B1rrW. CoPYRIGr @ 1988 by West Publishing Company. All rights reserved.

1. The formation of a contract and the enforcement of the contract are separate questions. A writing is not required for contract formation (unless the offeror requires a writing as the last act of contracting). A writing, however, may be required for the enforcement of the contract. Whether a court will not enforce a contract because it is not in writing is controlled by the Statute of Frauds. The three most common examples are: a contract for the sale of goods for the price of $500 or more must be in writing to be enforceable; a contract that could not be fully performed within one year from the date of contract formation must be in writing to be enforceable; and a contract for the sale of an in- terest in real estate must be in writing to be enforceable. Even in those situations where a writing is re- quired by the Statute of Frauds, the question then becomes what terms must be in the writing.

2. If a contract has been committed to writing, whether the writing was required or not, the ques- tion must then be whether the writing includes all the contract terms or only some of the contract terms. This question involves the parol evidence rule.

3. This article does not discuss the Statute of Frauds or the parol evidence rule. The focus of this article is the writing, whether required or not and whether inclusive of all the contract terms or not.

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The following is the beginning of a checklist: 1. Scope

The applicable state law if the parties decide to select the ap- plicable state law (that is, choice-of-laws provision)

2. Contract formation

a. The offeror's duties

b. The offeree's duties c. The timing and dependence of the performance of the duties on

one another

d. Events or conditions necessary to create the duty e. Events or conditions necessary to terminate the duty

f. Whether all the terms of this contract will be set forth in this writing and, if so, whether the writing should so state (that is, a merger clause)

3. Enforcement

a. If the contract must be in writing to be enforceable, what terms should the writing contain and who must sign

b. If the contract could be held unenforceable, what should be the alternative course of action of the parties

4. Breach

a. Definition of breach

b. Significance of breach

5. Remedies for the Aggrieved Party

a. The aggrieved party's remedies

b. Alternative methods of dispute resolution in lieu of litigation (for example, mediation or arbitration)

c. A statement relating to costs and attorneys' fees

d. The forum in which litigation would take place

B. Be Brief

Omit surplus words. State your meaning clearly and concisely. More words do not make a better contract. Wordiness only creates an oppor- tunity for ambiguity and confusion. Eliminate unnecessary paragraphs, sentences, phrases, and words. Good writing stresses conciseness.

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Tips for Drafting Contracts 57

A single word can often substitute for a verbose phrase: afford an opportunity allow, let

and/or or

as to whether whether

at that point in time then

due to the fact that because

during the period when when

during the time that during, while

file an action against sue

first of all first force and effect force, effect

for the reason that because

free and clear free, clear

full and complete full, complete

from the point of view from

good consideration consideration

have an impact on affect

have a tendency to tend

insofar as... is concerned (omit the entire p1

null, void, and of no further effect

point in time

prior to

subsequent to

suffer and permit

sufficient consideration

there is no doubt but that

the question as to whether this is a topic that

void contract

written document

written instrument

trase and start with the subject)

void

time

before

after

permit

consideration

doubtless, no doubt

whether, the question whether this topic

no contract document

instrument

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Many verbose phrases are compound prepositions:

by means of by

by reason of because of

by virtue of by, under

for the period of for

for the purpose of to

in accordance with by, under inasmuch as since

in connection with with, about,

in favor of for instances in which when in lieu thereof instead

in order to to

in regard to about

in relation to about, conce

in spite of the fact that although

in terms of in in the nature of like

in view of because

on the basis of by, from

on the part of by

until such time as until

with the exception of except

with reference to about, conce

with regard to about, conce

with respect to on, about

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concerning

.rning

rning rning

As an exercise, remove the unnecessary verbiage from the following paragraph.

1. The lessor, party of the first part, agrees 2. to lease, rent and/or otherwise allow the lessee

3. party of the second part, to use, occupy and 4. hereafter during the term of this lease, make use

5. of lessor's, said party of the first part's premises.

Tips for Drafting Contracts 59

6. The lessee, said party of the second part, shall 7. compensate, pay and/or remit to the lessor, said

8. party of the first part, for and in consideration

9. of the said agreement of lease, rent and/or 10. otherwise use lessor's, said party of the first

11. part's premises, the dollar sum of Two Thousand

12. Dollars ($2,000.00).

C. Simplify Your Language

Use clear, precise terms. Avoid synonyms. If you mean "rooster," use "rooster." If you mean "hen," use "hen." If you mean "rooster" but use "chicken," a synonym, the reader might believe you mean "hen." Do not confuse your reader by using different words to refer to the same ob- ject or idea.

Avoid "legalese." Legalese does not make a writing "legal." Legalese only makes a writing pompous and confusing.

EXAMPLE Said Jack and said Jill went up the said hill to fetch a said pail of said water.

When removing "said" from your writing, also remove "heretofore," "one," "whereas," and any other legalese that you might find. The following list will form a starting point for words to remove:

aforementioned aforesaid forthwith hereafter hereby hereinafter heretofore herewith one said thence whereas

"Minimize confusion by referring to parties by name rather than designating them "the party of the first part" and "the party of the se- cond part."

Avoid indefimite pronouns such as "it, they, this, who and which." An

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indefinite pronoun only adds confusion. When possible, substitute a noun for a pronoun.

EXAMPLE The following sentences can be rewritten to eliminate the indefinite pronouns. "In this law review article it states that paralegals are real assets." "This law review article states that paralegals are real assets." "They say that the program for legal assistants is one which benefits students." "The legal assistants program benefits students." "There is a house, it stands on a hill." "The house stands on a hill."

Avoid "etc." "Etc." gives the reader no new information and only demonstrates that either the writer does not know or is too lazy to tell the reader.

EXAMPLE "The bride received gifts from New York, Florida, California, etc." When rewritten to avoid "etc.", the sentence becomes "The bride re- ceived gifts from many states, including New York, Florida and Cali- fornia."

Simplify your drafting style. Group similar terms together.

EXAMPLE "The seller shall deliver the goods to buyer's store. The buyer shall

pay the seller upon delivery. The seller will pay the cost of shipping. The buyer will inspect the goods upon delivery. The goods are sold as is. The buyer shall insure the goods during transit."

When rewritten to group similar terms together, the paragraph be- comes:

"The seller shall: 1. sell the goods "as is;" 2. deliver the goods to the buyer's store; and 3. pay the cost of shipping.

The buyer shall: 1. pay the seller upon delivery; 2. inspect the goods upon delivery; and 3. insure the goods during transit."

Could the following lease be improved by deleting the legalese and grouping the lessor's duties and lessee's duties?

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Tips for Drafting Contracts 61

1. WITNESSETH: that the party of the first 2. part, for and in consideration of the rents, 3. covenants and agreements hereinafter contained, 4. does, and by these presents, demise, lease and 5. rent, for a period of six months from the first 6. day of June, 1987, to the party of the second 7. part, the following described property, to-wit: 8. The party of the second part, for and in 9. consideration of the use and possession of said

10. premises for said period, does hereby agree to pay 11. unto the party of the first part, the sum of Three 12. Thousand Dollars ($3,000.00), said sum to be paid 13. in the following amounts and at the time herein 14. designated, to-wit: 15. On the first day of June, 1987, the sum of 16. Five Hundred Dollars ($500.00), and on the first 17. day of each and every month hereafter the sum of 18. Five Hundred Dollars ($500.00), until the total 19. sum of Three Thousand Dollars ($3,000.00) shall 20. have been fully paid. 21. THE PARTY OF THE SECOND PART further agrees to 22. keep and maintain all portions of the building let 23. to him by the terms of this contract in as good 24. state of repair as the same are turned over to him. 25. THE SECOND PARTY further agrees to be 26. responsible and pay for the repair of any damage 27. done to any of the buildings or grounds by any of 28. his family or guests. 29. THE SECOND PARTY agrees to hold said first 30. party free from any and all expenses for lights, 31. heat or any other expense incident to the 32. occupant of said property. 33. THE PARTY OF THE SECOND PART shall not engage, 34. or allow any other person, pet or animal to engage 35. in, any conduct that will disturb the quiet and 36. peaceful enjoyment of the other tenants, the party 37. of the first part, or the neighbors of second 38. party, or use the premises for any purpose 39. whatsoever which violates the laws of the 40. United States, the State of New Hampshire, or the 41. City of Concord.

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62 Journal of Paralegal Education and Practice

D. Use Base Verbs and the Active Voice

Activate your writing with verbs. Replace nouns with verbs. The purest verb form is the base verb (for example, collide, decide, pay). Verbs give sentences movement and life. Nouns do not. Use the base verb rather than its derivative noun.

collide collision decide decision pay payment resolve resolution

Replace forms of the verb "to be" (is, are, be) with active verbs (run, skip, jump).

EXAMPLE "The ruling was made by the trial judge" becomes "The trial judge ruled."

Active voice energizes your writing. Substitute active for passive verbs. With active voice, the subject of the sentence acts. With passive voice, the subject of the sentence is acted upon.

EXAMPLE "The police were called by Tom" becomes "Tom called the police."

Passive voice usually requires more words than active voice. In the above example, the passive voice requires a supporting verb (were) and a preposition (by).

Passive voice creates detached abstraction within the sentence. With the active voice, the reader readily understands who is doing what to whom. With passive voice, who is doing what to whom is often unclear.

E. Avoid Sexist Language

"Every man for himself" is history. Sexist language should be deleted from your writing. Several tips are useful:

1. Avoid expressions that imply value judgments based on sex.

EXAMPLE "Are you a man or a mouse?" "A difficult task is a man's work." "Don't be such a weak sister." "He refused to do woman's work."

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Tips for Drafting Contracts 63

2. Change the wording of male-oriented expressions to include both men and women.

EXAMPLE "reasonable man" becomes "reasonable person" "gentlemen of the jury" becomes "members of the jury" "Dear Sir" becomes "Dear Madam or Sir"

3. Replace sex-based descriptions and titles with non-sex-based

descriptions and titles.

EXAMPLE "workman" becomes "worker" "newsman" becomes "journalist" "fireman" becomes "firefighter"

4. Use parallel construction when referring to both sexes.

EXAMPLE "man and wife" becomes "husband and wife."

5. Avoid masculine singular pronouns when not referring to a male. Although "he or she" can be used in moderation, it is often best to rewrite the sentence.

a. Omit the pronoun if it is unnecessary.

EXAMPLE "The average citizen feels that he is doing his duty by voting" be- comes "The average citizen feels a duty to vote."

EXAMPLE "Every person has his constitutional rights" becomes "Every person has constitutional rights."

b. Use the second person rather than the third person.

EXAMPLE "Each voter must cast his own ballot" becomes "As a voter, you must cast your own ballot."

c. Use the plural rather than the singular.

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EXAMPLE "Every spring the farmer plows his fields" becomes "Every spring farmers plow their fields."

EXAMPLE "The policeman risks his life on a daily basis" becomes "Police of- ficers risk their lives daily."

F. Check for Spelling, Punctuation, and Grammatical Errors

Common spelling errors should be eliminated from your writing. Do not expect a secretary to correct your work. Errors will reflect upon you and not your secretary. Keep a list of words you tend to misspell.

EXAMPLE The following are common spelling errors:

accommodate not accomodate admissible not admissable allege not alledge already not allready alright not all right argument not arguement coming not comming condition precedent not condition president defendant not defendent definite not definate demurrer not demurer discussed not discused dissatisfied not disatisfied divisible not divisable existence not existance integrated not intagrated judgment not judgement occurred not ocurred or occured separate not seperate their not thier unconscionable not unconcionable

or unconsionable or uncontionable

until not untill warranty not warrenty

or warrantee

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Tips for Drafting Contracts 65

whether not wether writing not writting written not writen

Check punctuation. Eliminate grammatical errors from your writing. A common error is to

write "it's" for "its" and "its" for it's." "It's" is a contraction, meaning "it is." "Its" is a possessive pronoun.

EXAMPLE "It's February 2 and the groundhog saw its shadow."

"Irregardless" is improper. Use "regardless."

EXAMPLE "I will do as I please irregardless of the consequences" becomes "I will do as I please regardless of the consequences."

Check "to," "too," and "two."

EXAMPLE "We dined out from one to two and ate too much."

Distinguish between "between" and "among." "Between" is used for

only two while "among" implies more than two.

EXAMPLE "The voters had a choice between Mary and John for President and among Susan, Tony, and Robin for Vice President."

"Their," "there," and "they're" can cause problems.

EXAMPLE "With the first crash of thunder, their horses broke away from the wagon and left them there in the wilderness where they're unlikely to find help."

"Affect" is always a verb and means to influence. "Effect" is most

commonly a noun and means result.

EXAMPLE "The pickets will affect the company's production but their actions will have only a short term effect."

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"Whether" should be distinguished from "weather."

EXAMPLE "The weather report did not help us decide whether to risk a trip to the beach."

These suggestions are but a brief introduction to better drafting. A number of helpful books are available. They include: G. Block, Effective Legal Writing (Foundation Press 1981); L. Glorfeld, D. Lauerman, & N. Stageberg, A Concise Guide for Writers (Holt, Rinehart, Winston 4th ed. 1977); K. E. Gordon, The Transitive Vampire: A Handbook of the Inno- cent, the Eager, and the Doomed (Times Books 1984); D. Mellinkoff, The Language of the Law (Little, Brown & Co. 1963); C. Miller & IK. Swift, The Handbook of Nonsexist Writing (Harper & Row 1980); W. Strunk & E. B. White, The Elements of Style (MacMillan 3d ed. 1979); R. Wydick, Plain English for Lawyers (Carolina Academic Press 1979).