A Manual of Style for Contract Drafting

1079 Pages·2013·9.29 MB·English

by  Kenneth A. Adams

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Cover design by Tamara Kowalski/ABA Publishing.
Page layout by Quadrum Solutions.
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opinions of the authors and editors and should not be
construed to be the views or opinions of the law
firms or companies with whom such persons are in
partnership with, associated with, or employed by,
nor of the American Bar Association or the Business
Law Section unless adopted pursuant to the bylaws
of the Association.
Nothing contained in this book is to be considered as
the rendering of legal advice for specific cases, and
readers are responsible for obtaining such advice
from their own legal counsel. This book and any
forms and agreements herein are intended for
educational and informational purposes only.
© 2013 American Bar Association. All rights
reserved. No part of this publication may be
reproduced, stored in a retrieval system, or
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without the prior written permission of the
publisher. For permission contact the ABA
Copyrights & Contracts Department,
Library of Congress Cataloging-in-Publication Data
Adams, Kenneth A., 1961–
Manual of style for contract drafting / By Kenneth
A. Adams.
pages cm
ISBN 978-1-61438-803-6 (alk. paper)
1. Contracts—United States—Language. 2.
Contracts—United States. 3. Legal composition.
I. American Bar Association. Section of Business
Law. II. Title.
KF807.A33 2013
808.06’634-dc23
2012048990
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To my daughter, Sydney A. Adams
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List of Tables
List of Samples
List of Figures
Preface
Introduction
CHAPTER 1 The Characteristics of Optimal Contract
Language
Contract Language Should Be Clear
Omit Archaisms
Omit Problematic Terms of Art
Use Standard English
The Myth of “Tested” Contract Language
Contract Language Should Be Precise
Contract Language Should Omit Redundancy
Limit the Use of Strings
Reject Needless Elaboration
Contract Language Shouldn’t Explain, Tell a Story,
or Persuade
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Contract Language Should Omit Repetition
Contract Language Should Employ Usages
Consistently
CHAPTER 2 The Front of the Contract
The Title
The Introductory Clause
“Know All Men by These Presents”
Format
Reference to the Type of Agreement
What Verb to Use
Date
“Between” Versus “Among”
Identifying the Parties
The Order of the Parties
Having a Parent Company Enter into a Contract on
Behalf of an Affiliate
Parties with a Limited Role
Referring to Lists of Parties
Describing the Parties
Defined Terms for Party Names
The Defined Term “This Agreement”
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Recitals
Function
Giving the Recitals a Heading
Enumeration
Use Simple Narrative Prose
What Verb to Use in Purpose Recitals
Premature Recital References to the Agreement
Incorporation by Reference
“True and Correct”
Defined Terms in the Recitals
The Lead-In
Wording
Consideration
Giving a Heading to the Body of the Contract
Cover Sheet, Table of Contents, and Index of
Defined Terms
CHAPTER 3 Categories of Contract Language
Preliminary Considerations
Use the Third Person
Use the Active Voice Unless the Passive Voice Is
Appropriate
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Language of Agreement
Language of Performance
Use of “Hereby” in Language of Performance
Problematic Usages
Indicating Absence of Performance
Future Performance
Advantages of Granting Language
Language of Obligation
Language of Obligation Imposed on the Subject of a
Sentence
Language of Obligation Imposed on Someone Other
Than the Subject of a Sentence
Imposing Impossible Obligations
Obligations—Some Related Terminology
Language of Discretion
Using “May” to Convey Discretion
Be Explicit as to Whether Discretion Is Limited
The Ambiguity Inherent in “May . . . Only”
Using “May” to Convey Possibility
“May Require”
Don’t Use “At Its Sole Discretion” with “May”
“May” and the Timing and Frequency of Permitted
Actions
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“Hereby Grants . . . the Right To”
When Exercising Discretion Requires Cooperation
“Is Entitled To”
“Is Not Required To”
Language of Prohibition
“Shall Not”
“May Not”
“Is Not Entitled To”
Don’t Use “Shall Refrain”
Other Suboptimal Usages
Collective Nouns
Prohibition by Way of an Exception to Language of
Discretion or Obligation
Choosing Between Discretion and Prohibition for an
Action Subject to a Condition
Language of Policy
Verbs in Language of Policy
Passive-Type Policies
Expressing Conditions
Conditional Clauses
Language of Policy Used to Express Conditions
Language of Obligation Used to Express Conditions
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