The BUSKLAW December Newsletter: Avoid These "Lumps of Coal" in Your Contracts!

'Tis the holiday season. Folks are hanging their Xmas stockings in the hope that S. Claus will fill them with goodies - not lumps of coal - on Xmas Eve. So let's see if your contracts contain troublesome legal jargon that serves no legal or business purpose - contractual lumps of coal.  As you sip your (hopefully fortified) eggnog and scarf down a holiday cookie (or better yet, a Marge's donut), why not fire up your word-processing software, pull up a recent business contract or two, hit the "find" command, and enter the following words or phrases:

• "In consideration of" or "for good and valuable consideration"

        This is a lump of coal because if there is no actual consideration (e.g., money changing hands) in your contract, merely reciting this phrase won't make your contract enforceable. The same analysis applies to the following common contractual phrase, "intending to be legally bound." (Tip of the hat to legal writing guru Ken Adams on this one.) 

• "sealed"

       Long before America was founded, our British overlords decided that a contract wasn't valid unless it was sealed, i.e., imprinted in hot wax with some official-looking sigil. But we forward-thinking colonists (eventually) decided that requiring contracts to be sealed was silly. So now the only rightful place for a sealed contract is in an old Marx Brothers movie. There is no reason to state that "this agreement is signed and sealed this ___ day of ________."

• "executed"   

        If there is one word that lawyers like to use in a contract, "executed" fills the bill - as in, "this agreement is executed on this 1st day of December..." But using "executed" is stupid when you mean that the agreement was signed on a certain day. Simply use "signed" - and drink the rest of your eggnog. 

• "shall"  

        Lawyers are addicted to this word, perhaps because they think their contracts have the force of the King James Bible, where "shall" is used 6,796 times. But using "shall" to denote a duty is antiquated, confusing, and suggests that the drafter is living in 1612, the year that the King James Bible was first printed. The meaning of "shall" has been litigated more than all the gingerbread crumbs in Santa's beard on Xmas Eve, so don't use that verb. Use "will" or "must" instead. 

• "aforementioned," "said," "herein," "hereinafter," "above," "hereinabove," "foregoing," and the like

       Many contract-drafting lawyers use these words more than tinsel on a Xmas tree, usually as pointers to a previous contract clause. Example: "Subject to the foregoing exception, Santa will be leaving presents under trees on Xmas Eve." The problem with this usage is that there could very well be more than one "foregoing exception." And there is no way to know what particular antecedent exception the drafter had in mind. So these words create ambiguity, and ambiguity in a contract makes it ripe for expensive and time-consuming litigation.  

• "whatsoever" or "for all purposes"

        Some of my brothers and sisters at the bar must not trust the English language. Otherwise, why do they persist in using these words as redundant "non-qualifiers"? I bet that when they wrote S. Claus in their all-too-brief youth they didn't say: "Dear Santa, I've been good for all purposes this year, so please bring me a new bike."  If these lawyers didn't use these words in their letters to Santa, there is certainly no need to use them now. They are meaningless. 

• "and/or"

        Using this phrase in a contract is begging for trouble, akin to telling Santa that you don't believe in him even though you hear the sound of tinkling bells and snorting reindeer outside your bedroom window on Xmas Eve. As one legal-writing expert stated, "the only safe rule to follow is not to use the expression in any legal writing, document or proceeding, under any circumstances (D. McCarty, 1960)." In most cases, "or" can safely be used. For other cases, clarify your point.

• "prior to" 

        If you wonder why this phrase is a lump of coal, consider if Clement Moore had started his beloved Xmas poem with this line: "'Twas the night prior to Christmas..." Loses the punch of plain English when compared to simply "before," doesn't it? The phrase "prior to" is pretentious, whether used in a contract, in a newspaper, by a television announcer, or on a sign. "Before" is best. 

What do you do if you find these lumps of coal? I'd insert "(!?)" beside each and then send the contract back to your lawyer who drafted it to make the necessary repairs (preferably at no charge, since it's Xmas and lawyers who don't use plain language should be generous souls when called to task). To help with the remedial process, please see this article in the February, 2015, Michigan Bar Journal. 

There's a Superman television episode from the 1950s where our superhero squeezes a lump of coal so hard that it turns into a radiant diamond. (Excuse me for changing icons.) Good news: with less than superhuman efforts, contractual lumps of coal can be transformed into diamonds of plain language! 

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May you and yours be blessed with peace and joy this

holiday season!