One of the most common criticisms levelled at agreements drafted by English and American lawyers is that they are extremely difficult to read without an extended knowledge of legal English. Here we will show you several of the factors that make agreements so unreadable and we will suggest some ways in which this can be eliminated by using Plain English.
The Passive Voice
When sentences are written in the passive, the focus is on the object rather than the subject or the agent of the action. Often, the subject is not even mentioned as in the following phrase:
“The agreement may be terminated in the event of any breach by the Employee.”
There is no reference to the “party” which is entitled to terminate the agreement (although it is implicit that the right belongs to the Employer). The sentence can be written in Plain English by avoiding the passive as follows:
“The Employer may terminate the agreement if the Employee commits a breach.”
The advantage of the active, rather than the passive, is that the focus is on the party which may exercise the right, which is much more emphatic and clearer to read.
Sentence interruption is very common in contract drafting and can make a clause rather confusing and difficult to read. Let’s look at the following example:
“The Licensor is entitled to, by giving the Licensor written notice in the form set out in Schedule 2, audit the financial records of the Licensee.”
The first part of the sentence introduces the Licensor’s right (“is entitled to”) but before we are told the scope of the right, the sentence is interrupted with the condition that has to be fulfilled (the obligation to give notice). By placing the condition to give notice at the end of the sentence like we’ve done below, the interruption is eliminated and the clause becomes much easier to read:
“The Licensor is entitled to audit the financial records of the Licensee, by giving the Licensor written notice in the form set out in Schedule 2.”
However, it is important to note that a small interruption to a sentence does not always make the clause so difficult to read:
“The Company, at its own cost, shall provide the Consultant with the services set out in Schedule 1.”
Here, the interruption “at its own cost” is insignificant. It’s therefore unnecessary to place these words elsewhere in the clause.
Tautology means pairs of words that have the same meaning like “null and void”. You should avoid tautology when drafting contracts as one of the words is superfluous and may cause confusion.
A further example of tautology is the phrase “including but not limited to”. The phrase “but not limited to” is superfluous because “including” indicates a non-exhaustive list. However, this phrase is extremely common in contracts where the governing law is English or American law as surprisingly, courts in those countries have interpreted “including” as indicating an exhaustive list. Therefore, drafters of contracts will seek to add the words “but not limited to” to ensure that it refers to a non-exhaustive list but this can cause confusion to readers who are not familiar with the English or American context.
These are just some areas you need to think about when drafting contracts in English. Taking a tailored legal English trainingcourse such as Drafting Contracts in English will help you understand these rules and develop your legal English writing skills. A legal English course will give you the required knowledge and tips to help you to write accurately and correctly resulting in accessible, comprehensive and readable legal documents.
© Communicaid Group Ltd. 2011