Ep.39 In the light of this review of the way in which the principles of contractual interpretation impinge upon drafting, are there any general principles of drafting which can be established?
Ep.40 Since drafting, like contractual interpretation, is an art rather than a science, it is only possible to state principles at a high level of generality and, in reality, they do little more than state the obvious. But then sometimes the obvious is worth stating.
Ep.41 The aim of drafting should be to produce a document which is as clear and as brief as possible.
Ep.42 There can be little doubt that the contract should be as clear as possible—in other words, plain, simple, straightforward, understandable, direct, and to the point; and without confusion, complication, or doubt. There is little controversial there. The suggestion that it needs to be as clear as possible reflects the fact that, in giving effect to complicated arrangements, clarity is an aspiration which cannot always be achieved.
Ep.43 It is also suggested that the document should be as brief as possible—consistent with the nature of the contractual arrangements being documented. This is perhaps more controversial. If clarity requires a lengthy document, then so be it. The suggestion is not that documents should be short, but that they should be as short as possible in the light of what needs to be achieved. This reflects the fact that legal documents, unlike novels, are not read for pleasure; and it seems reasonable to assume that business people would like their contracts to be as short as they sensibly can be.
Ep.44 In order to achieve a document which is as clear and brief as possible, the draftsman needs to consider three things:
(p. 212) Ep.45 As far as structure is concerned, the contract needs to be planned logically, and the individual clauses need to fit with each other. This requires planning in advance before drafting.
Ep.46 In practice, the layout of a document can be almost as important as the words used. The purpose of any document is to tell a story—in this case as clearly and briefly as possible. Anyone who has had to read a document which consists of pages of text without indentations and with no indication that the sentence will ever end (and many legal documents are like that) will need no instruction in the importance of spaces in documents. It will never be a pleasure to read a legal document, but the role of the draftsman must surely be to make it as little of a penance as possible. This is helped by:
These all go to making the document easier to read.
Ep.47 As far as the words are concerned, there is no requirement to use ‘legalese’ and every incentive to use ordinary, understandable words to make points which the reader will understand. The draftsman should put himself or herself in the position of the persons who will read the contract—the parties, transferees, and the court—and ask how they will understand it.
Ep.48 One of the problems which the courts have to deal with in relation to drafting is the use of lists. The problem with lists is that the draftsman normally ends up by using a general sweeping concept in case he or she has missed something. But, as can be seen from the discussion of Principle 5, this invites the court to read the general words eiusdem generis, and thereby defeats the object of the exercise. Far better to use general, all-encompassing words to express the concept which needs to be covered, and then, if necessary, to use lists as examples of the general concept. In that way, the court cannot read down the general words. The use of general words also enables the draftsman to cut down the number of words used, which is itself an advantage.
Ep.49 On a more substantive note, the draftsman should always have in mind the reasonableness of what he or she is producing. As has been seen in the discussion of Principle 7, the more unreasonable the drafting, the more the court will try to unravel it.
(p. 213) Ep.50 These principles are set out in tabular form in the next section of the book, Principles of Drafting, and they are followed by a draft interpretation clause.
Ep.51 If one wanted to express the basic principles of drafting in just two simple concepts, I would suggest that drafting should be: