TRANSACTIONAL DRAFTING: THE ART OF LEGAL LANGUAGE AND STYLE OF CONTRACTS

Category: Commercial Law
Blog Post Image
「 ✦ Content ✦ 」

Furthermore, Indian contract law does not mandate any specific type of contract, with the exception of those pertaining to immovable property, which must be executed in a specific way and be required to be recorded in writing. 


Keyword – Transactional, drafting, contracts, legal writing, essentials, language, experts,


TRANSCTIONAL DRAFTING OF CONTRACTS 

Although the contracts course explains the principles of contract law, what about helpful advice on how to draft contracts? A transactional lawyer's knowledge required to draft or review contracts differs from that of a subject studied from a litigation or case law perspective. 


As the previous chapters demonstrate, writing in a persuasive manner is useful in litigation, but it is not useful when drafting or reviewing contracts. Therefore, learning to read, analyse, and draft contracts from the ground up takes up the first few years of transactional or corporate practice in law firms. Are law schools set up to give students real-world experience? Maybe not. What the law offers is a toolkit—a collection of comprehensions—that will improve abilities.


Legal experts believe that if more training was given in the foundations of legal drafting, the learning curve that currently exists for students entering the field would be lessened. Future lawyers need the chance to practice and get better, which is why contract drafting is taught in law schools and why moot court competitions are important. 

LEGAL WRITING IN CONTRACTS


While legal writing (pleadings, briefs, etc.) deals with past events, legal drafting (contracts, wills, etc.) deals with future events. Is contract drafting limited to editing drafts, or does it involve much more, and could recently graduate lawyers gain from drafting training? Generally speaking, transactional lawyers copy and edit what litigators write. Since every dispute has some unique elements, litigating attorneys must write with a new voice and viewpoint. On the other hand, two transactions with minimal drafting may be very similar to one another. Contracts are rarely drafted by transactional lawyers from the ground up or with significant modification freedom. 


To make sure it accurately reflects the parties' intentions, they begin with a draft and work on it under strict deadlines. In order to create new language that fits the transaction, language from other sources is borrowed, and then additions, deletions, and revisions are made. However, transactional drafting goes beyond simple modification. On the other hand, transactional lawyers must figure out how to deliberately improve their drafting skills. Writing for litigation and drafting contracts are two different things, so it makes no sense to compare them. 


While a contract addresses known issues and makes an effort to address unknown issues that may arise in the future, a legal brief or petition addresses known and disputed issues. While litigators typically have the advantage of time and hindsight when they review the language of a contract in dispute, transactional lawyers draft under time constraints in order to ensure that the transaction or deal goes through. Ultimately, the disagreement and the subject of a court opinion regarding the wording used by transactional lawyers in their contracts may be unclear.


CONTRACT DRAFTING 

Start by becoming (a) aware of the precise type of relationship that the parties hope to build and (b) conversant with the jargon used in that particular industry. Understanding the unique terminology and legal requirements of most industries is beneficial when drafting contract clauses. Consult texts and treatises on the relevant topic to ascertain the special provisions that may be applicable to a particular area of law. Prior to starting to draft, create an outline that covers all of the important details, such as the client's requirements and the areas that the contract needs to cover.


In this situation, creating a list of the sections or subjects that the contract needs to address is helpful. Although every contract is different depending on the circumstances, you can also refer to any current agreements that address the same or a related subject. However, no single format will work for every client or situation. As you begin to draft the contract, refer to your checklist for guidance. The following guidelines can be useful when drafting the contract: 


(A) Wording needs to be formal and concise. Make use of the technical terms that are required and their definitions; however, avoid overcrowding the contract with legalese or jargon. 

(B) Every clause may only address one topic at a time. 

(C) It is important to make sure that 

(i) a single term is used to refer to a single item or person, and 

(ii) a single term is not used to refer to multiple distinct items or people. Provide a section with definitions for each of the important terms. 

(D) Read the contract again from front to back after framing each clause. Instead of enlarging the wording of issues within a single clause, search for more significant inconsistencies across the contract. 

While keeping an eye out for details, don't ignore more significant ambiguities. Is it beneficial to go through several drafts before deciding on the best response? The answer is far from perfect, and it is impractical to get every detail correct in the first draft.


LANGUAGE OF THE DRAFTS

The use of a variety of expressions and language is common in modern commercial contracts. However, ambiguous language and expressions are susceptible to judicial interpretation, especially in intricate business contracts. Whether the contractual clauses are drafted correctly to accomplish the parties' intentions is a matter of dispute. The majority of contemporary drafting experts recommend using precise language and clear syntax when drafting clauses. However, the principles of substantive contract law also dictate how some clauses are worded in contracts—rules that occasionally run counter to the style gurus' holy doctrines! Every word matters in contracts; if one is contested, the entire document could be scrutinized for any unclear language. 


For instance, "one month" or "30 days"? "no later hand" or a "within" ? Contracts must be clear to all parties involved, and any difficulties in understanding them should stem from substantive problems rather than problems with syntax or sentence construction. The essence of contract drafting is mutual cooperation between the parties; in a negotiated transaction, each party contributes to the contract's wording. Contract terms evolve as each party examines and modifies the wording to meet its needs, and the parties' rights must be drafted. Each party to the contract has & continuously throughout the terms of the agreement. 


AMBIGUITY IN NATURE 

The term "unambiguous" is used when language is clear and there is agreement on meaning, and the term "ambiguous" is used to describe language that is susceptible to multiple interpretations in everyday speech. Either "syntactic" or "semantic" linguistic ambiguity exists when the same word sequence can be understood in various ways (individual words have more than one meaning or multiple meanings). There are three types of ambiguity in law: syntactic (ambiguity arising from a sentence's word order), semantic (ambiguity arising from words having multiple meanings), and contextual (ambiguity arising from contradictory clauses within the same contract). 


According to a modern UK expert in statutory interpretation, the sentence's awkward construction is a major source of ambiguity. Specifically, not making it obvious which words a modifier changes and which it Sentence structure produces syntactic ambiguity; it does not result in ambiguous modification. or vagueness in the syntax.


CONCLUSION 

Two issues with nearly all legal writing were raised in a 75-year-old American legal journal article criticizing the writing style of the legal profession. Its style is one. Its content is the other. “The language, conventions, and writing style that originated in a completely different setting a long time ago are still deeply ingrained in the legal profession in India. Experts in contemporary legal writing have recently bemoaned the poor writing abilities of attorneys, especially transactional attorneys: Transactional lawyers conduct their work with complete disregard for the potential landmines they may unintentionally lay in their documents." To be fair, contemporary transactional lawyers face many challenges when it comes to language usage in their drafting, many of which can have an effect on the transaction. 


Advocates of plain language in contract drafting attest to improved clarity and reduced ambiguity. However, there are dangers involved in doing away with established, tried-and-true legal terms of art entirely. The risks include the obligations of the transactional lawyer, as well as attacks from the other party and judicial interpretation. It is best to modify legal terminology and use new language while considering the client's needs and viewpoint, as well as the courts' judgment regarding the efficacy and enforceability of a contract in the relevant jurisdiction for transactional lawyers. 


Occasionally, a conventional term, even though less Language is an essential component of writing and thought processes; it is not only a tool for contemporary, maybe the best draft choice communication. When concepts are expressed using the right language, they become evident. The contract's content is improved when the language is unambiguous.

REFERENCES


  • Fernandez, Ben L. “Transactional Drafting: Introduction to Contract Drafting and Transactional Practice.” Open Textbook Library, 2021, open.umn.edu/opentextbooks/textbooks/1296. Accessed 28 Sept. 2024.

  • “LibGuides: Legal Writing: Transactional Legal Writing.” Asu.edu, 2023, libguides.law.asu.edu/legalwriting/transactional. Accessed 28 Sept. 2024.

  • Richa Kachhwaha. The Art of Legal Writing. 2019.


    OLQ is a Pan-India basis law firm connecting legal expertise nationwide.

    WRITTEN BY: YASH BHARDWAJ

    GUIDED BY: ADVOCATE ANIK






Rounded Image

Submit Comment