Outdated contract drafters

Is it necessary for English language contracts to be so difficult to understand? The answer is no.

Unfortunately, many contract drafters use an outdated language when drafting contracts. Contracts are often full of redundant and outdated word and phrases. Furthermore, outdated drafting is being passed down to the next generation of contract drafters.

Certain outdated words and phrases have distinct legal implications and must be used. However, usually there is no good reason to stick to such wording. It also creates at least three interrelated problems.

First, there are several users of a contract, and making contracts unnecessarily difficult to understand makes them less accessible for the broader audience of users. This creates a risk that important stakeholders will not perform according to the contract.

Second, such drafting is expensive and less useful. The contract ends up only as a document written by lawyers, for lawyers, in anticipation of litigation, instead of also being a valuable tool for performance. Often such a contract is kept in a drawer until there is a conflict.

Third, it creates legal risks. Numerous drafters employ outdated wording because they are uncertain of the legal implications of amending it. For example, will it have legal implications to change the old-fashioned future tense "shall have" to the present tense? Probably not.

The word "shall" is one of the most misused words in contracts. I use the word "shall" for obligations, following the drafting principles of Ken Adams. What is the risk if you use "shall" for other purposes as well? Well, then you use the word inconsistently. This might create uncertainty as to whether the purpose of a particular use of the word "shall" is to impose obligations or something else.

And this presents a significant risk. A contract is made up of words, and the use of words is key. Therefore, it is important to draft contracts that are easy to understand and to use concise wording.

My advice is to challenge the use of old and outdated language in contracts. If a contract drafter insists on this drafting style, then ask why. If the response is that it is needed for legal reasons, then request an explanation accompanied by supporting legal sources. We lawyers should not get away with vague answers.

I can support you with drafting, reviewing, and negotiating agreements. When drafting agreements, I strive to ensure that they are easy to use and understand. Please do not hesitate to contact me if you have any questions or would like my support.