Until 1800 or so, lawyers who drafted contracts in the U.K. were called scriveners, and they were paid by the number of words in their documents. More words resulted in more money. This encouraged the use of excessive words in contracts - and the legal mumbo jumbo that plagues the legal profession to this day.
"Empty" words in a contract are more than just unnecessary; they create ambiguity, cause confusion, incite litigation, and increase the time it takes to read and understand a contract, especially for the business folks who must understand the contract to effectively administer it.
Most contracts (especially the forms that you can download from LegalZoom and RocketLawyer - excuse me if I don't give you the links) contain empty words, and these are some of the worst offenders:
- Archaic words. At the beginning of a contract, you'll often see a paragraph with the heading "Recitals" followed by several "Whereas" clauses and concluded by a "Therefore" clause that commonly includes the phrase "in consideration of." None of these terms add any business or legal value and should be junked. Better to replace them with an introductory paragraph captioned "Background" followed by a brief description of the parties' business relationship giving rise to the contract. And there's no excuse for the phrase "in witness whereof" before the parties' signatures at the end of the contract!
- Confusing references to the contracting parties. For example, software license agreements commonly refer to the parties as "licensor" and "licensee." These words are so similar that it's easy to use the wrong one. Why not simply use the real names of the parties? Just define "Able" as licensor and "Baker" as licensee at the beginning of the agreement, and then use Able and Baker throughout the document.
- Vague antecedent references. In the body of the contract, you'll often see such terms as "said," "such," "aforementioned," "above-mentioned," "hereinabove," "above," "foregoing," or the like. These terms often cause problems. For example, beginning a sentence with "except for the foregoing..." What does "foregoing" refer to? A preceding sentence or a preceding paragraph? Judges have had to grapple with these terms to decide what the parties intended when there is a lawsuit over what one of these terms actually referred to.
- Words used incorrectly. The phrase "due to" shouldn't be a substitute for "because." The proper use of "upon" is only for a condition or event. The verb "execute" shouldn't be used in lieu of "sign." The phrase "provided that" is usually not the best way to describe a condition. And don't use "shall" and "will" to create language of obligation interchangeably; better to forget "shall" altogether and use "will" or "must." And "which" should only replace "that" before a non-restrictive clause that is preceded by a comma.
- Grandiose words. The words in this bucket sound impressive but usually add nothing of substance where they appear: "forthwith," "merely," "completely," "duly," "whatsoever," "without limitation," and "for all purposes." Other examples: "with respect to," "in connection with," and "in order to." And "prior to" is best replaced with "before." Finally, "as of" should be replaced with "on."
Lawyers have various excuses for holding on to legal jargon. I will address these in a future post. For now, let's make a long story short: none of the excuses for using empty words in a contract are persuasive.
An effective contract creates an easily understandable blueprint of the parties' legal and business relationship rather than a meandering mystery tour of that relationship. If you find that your contracts are rife with empty words, the remedy is simple: find a lawyer who will take the plain-language pledge and purge these pointless words from your contracts! As for me, I'll practice plain-language principles until the hearse horse snickers as he hauls my carcass away.
If you find this post worthwhile or entertaining, please consider sharing it with your colleagues. The link to this blog is www.busklaw.blogspot.com and my website is www.busklaw.com. Thanks!
An effective contract creates an easily understandable blueprint of the parties' legal and business relationship rather than a meandering mystery tour of that relationship. If you find that your contracts are rife with empty words, the remedy is simple: find a lawyer who will take the plain-language pledge and purge these pointless words from your contracts! As for me, I'll practice plain-language principles until the hearse horse snickers as he hauls my carcass away.
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If you find this post worthwhile or entertaining, please consider sharing it with your colleagues. The link to this blog is www.busklaw.blogspot.com and my website is www.busklaw.com. Thanks!
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