Legal Drafting
Sharing Hukum
We have now seen that there are several features of ‘traditional’ English contract drafting that we must avoid when drafting contracts in 2018. The sample clause that we saw in Part 10 shows us examples of one such feature that we will concentrate on in this Part.
Vocabulary:
to avoid – Here, it means something that is not done, or should not be done, because you make a deliberate decision, for some reason, not to do it.
clause – A clause is a provision in a legal document, such as a written contract, expressly dealing with a particular aspect of the relationship between the parties to the contract. A contract clause can be sub-divided. When it is, the sub-divided parts are called ‘sub-clauses’. You can see that clause 5 of the contract, which deals with price, contains four sub-clauses.
such – This means ‘of this or that type’ but English lawyers often use it incorrectly and carelessly when they draft legal documents of different kinds; and especially contracts. I will look at the word ‘such’ in more detail in a later Part.
Commentary:
Look again at this part of the sample clause.
“Apollo…….shall retain and maintain sufficientlegal or beneficial title, right, interest, and ownership of . . . “
Exercise 1:
What do the parts of the clause I have highlighted in bold have in common? (‘To have in common’ means ‘to have similar characteristics’)?
Commentary:
In the last Part, we looked at the verbs ‘to retain’ and ‘to maintain’. In this clause they are verbs which express the obligations that Apollo (the subject) must comply with under the contract. Apollo must retainand maintain something. This can be described as a list of things, even though there are only two items in the list. What are the things that Apollo must retain and maintain? These things are ‘the legal or beneficial title, right, interest and ownership' of something. Again, we can see a list of things. Contracts drafted in English often contain lists of things.
The important point to note here is that traditional English contracts often contain long, sometimes very long, lists of things. These might be, for example, lists of verbs expressing several obligations, or a list of nouns identifying the things that are the objects of obligations. Why? There are several reasons, but basically English lawyers draft contracts which try to cover every eventuality. They often think it is necessary to use long lists of words to do so. However, we know that modern contract drafting demands that we draft our contracts with precision, with clarity, concisely and, as far as possible, in plain English.
Vocabulary:
To comply with [something] – This means that you do something that you are required to do because, for example, of a law, regulation, or a lawful order you are given by someone in authority (such as a policeman).
Under the contract – This means by and because of all the terms, conditions etc that are contained in [a legally enforceable contract]. Under the contract, you are obliged to deliver the goods to the buyer on the 8th September 2019.
to cover – Here, it means to think about and actively begin to deal with something (in advance of it happening). We can also say ‘to address’.
Eventuality – this means a possible event or outcome/result.
Commentary:
In Part 10, I asked if you could try to write plain English definitions of the verbs ‘to retain’ and ‘tomaintain’. I also offered my own definitions. My definition of ‘to retain’ included ‘to keep possession of, or legal ownership of, something, so that you have . . . continuing power of control over it. . .’ My definition of ‘to maintain’ included ‘to keep doing something, so that the current situation does not change’. The question here is whether these are two different types of obligation? For example, if the clause had omitted the verb ‘to maintain’, would it have made any difference to what Apollo were obliged to do under the terms of the contract? Is the definition of ‘to maintain’ contained in the definition of the verb ‘to retain’? Can you maintain something (that is, keep doing something so the situation does not change) without ‘retaining’ it (that is, keep legal ownership of it)? Fundamentally, ‘to retain’ and ‘maintain’ are both about ‘keeping’ something.
The point here is that where words have, fundamentally, the same meaning, or the meaning of one word is contained within another word, unless there is some very good reason, we should use only the words we really need to create, for example, the obligations the parties intend. The ‘very good reason’ might be, for example, that the word has some legal meaning or implication beyond its ordinary English definition, perhaps because the English courts or UK legislation has given it some special, legal meaning. As I have said previously, we always need to be careful when we deal with verbs, particularly in documents which create legal relations.
Vocabulary:
to omit – to fail or neglect to do something. You can omit to do something deliberately (on purpose) or accidentally. The noun form is ‘omission’. In law, we often talk about ‘acts and omissions’; ‘acts’ being things you actively do, and ‘omissions’ being things you fail to do for some reason.
Exercise 2:
1. Look at the list of nouns in the sample clause. Can you write brief, plain English definitions of the following three?
· legal title
· right
· ownership
2. Look at the following brief clause. Do you think that ‘to sell’ and ‘to dispose of’ are both necessary? [Think about what the clause might be trying to achieve and whether you think the words cover it adequately].
‘The Company must not sell or dispose of any of the Property without giing prior notice, in writing, to Lender.’
Commentary:
When we draft contracts in English, we must try to be concise. This includes omitting any unnecessary language. If something is unnecessary, it is ‘redundant’. Traditional contract drafting often contains a lot of redundant language. Redundant language includes words and phrases that are unnecessary and just make the contract look more clutteredand make it more difficult for ordinary people to understand.
Vocabulary:
redundant – If something is ‘redundant’, it means that it is no longer needed.
cluttered – If something is cluttered, it means it is filled with lots of things, usually in a very untidy way. English people talk about their homes being cluttered if they have, for example, too much furniture and belongings in them. In the same way a contract can be cluttered with lots of unnecessary or useless words which make it look very untidy and difficult to understand.
Commentary:
Finally, in this Part, I am going to give you my own four brief definitions for the words we have already seen in the sample clause:
· Legal title;
· Right;
· Legal interest; and
· Ownership.
I do not say that these definitions are ‘perfect’. They are written in relatively plain English and try to define each term in a nutshell. Study each definition and compare it with the ones you wrote for legal title, right, and ownership. [At this stage I don’t want you to worry about ‘beneficial title’.]
Vocabulary:
in a nutshell – This is an English idiom and means ‘in summary’. It is another way of saying something is summarised in a very brief way that omits most of the irrelevant details and highlights the essence of something.
Legal Title: If you have legal title to property it means that you own the property. In other words, the property is yours, you have a legal interest in it, you have a right to it, and this right is recognisable and legally enforceable by a court.
Right: A right is a claim to something, including property which, if necessary, a court will recognise and legally enforce. If you own property (in other words, if you have legal title to it), you have the right, for example, to sell it, to give it away, to destroy it, or deal with it in any way you wish, unless you have given some or all of that right away to someone else, or you have limited your right in some other way, such that that a court will recognise and enforce it.
(Legal) Interest: When you have a legal interest in something, it means that you, usually, have legal title to it, have the right to possess or use it because you own it, and this right is legally enforceable.
Ownership: If you own something, it means that you have legal title to it. You have a legal interest in that property, meaning that you have the right to do what you want with the property.
Exercise 3:
Now you have studied the four definitions I have given;
· can you see any similarities (things which are the same or almost the same) in each one?
· Do you think that any of the words in the list of nouns (legal title, right, legal interest and ownership) could be omitted from the sample clause because they are redundant, or for some other reason?
Komentar