by Thomas L. Bowden, Sr.
You get an
agreement from a new vendor. You start to read it and your eyes glaze over. "In
the event that....provided, however,.....including but not limited to...... For the
avoidance of doubt.........." And on and on it goes. What gobbledygook.
Of course this stuff is hard to read! So is quantum
physics, but that's because quantum physics is, in fact, hard, no matter
how well you write it (even for quantum physicists).
Contracts, however, should be easy to read - clear declarative sentences
organized into paragraphs arranged in a logical order.
Contracts are like computer programs. They set some
initial conditions (names of parties, date, etc.). Then they list a series of
basic directions and "if...then" statements which, if properly thought through,
should cover most any eventuality governed by the agreement. That's what
computer code does.
You can run computer code on a computer processor and you
will know pretty quickly if the code runs smoothly or if it hangs. The problem
with contract language is that for now, there is no contract processor to run
the code, except the gray matter of the reader, who may be a judge, another
attorney, or just a contract party.
Here are some tricks I use to make sense of contracts.
If you have the electronic file (in Word or something
similar), do these simple "search and replace" operations. Your altered
contract may not read perfectly, but it will be improved and more
In the event that
For the avoidance of doubt...
at no time
shall use its best efforts to
hereinafter referred to as
including but not limited to
including without limitation
in consideration of the foregoing
indemnify, defend and hold harmless
may at its sole discretion
provided, however, that
represents and warrants
reserves the right to
nothing - as in a blank space
promises or agrees
just create a ("Defined Term")
including - or delete the phrase entirely
Therefor (or blank space)
After this, your contract will be shorter and reading it
may seem less daunting. More importantly, it will be dramatically clearer and
more understandable. I actually have a software tool that will do all of this
automatically in one pass, which is very helpful.
All of these legalisms have crept into the language of
contracts over the years, and now most lawyers just accept them, and even feel
uncomfortable without them. Some actually think that adding them is chargeable
work. This does not make them necessary or even helpful. In many cases, they
are just crutches for sloppy drafting, which is often a symptom of sloppy
In particular, I despise "For the avoidance of doubt......"
followed by anything. I was taught that a good drafter says things once and
says them clearly. If you have to repeat it, you need to rewrite it. "For the
avoidance of doubt" is the legal equivalent of "I mean, you know, it's like,
blah, blah, blah........right?" Repetition of the same idea with different wording
merely opens up cracks for ambiguity to seep into the contract. If litigators
get a hold of that language, they will pry those cracks open with industrial
strength jackhammer arguments and corrosive cross-examination leaving your
"iron clad" agreement in a pile of rusty rivets and crumbling boilerplate. It's
worth knowing that an infamous case not so long ago
turned on the presence or absence of a comma, and millions were at stake.
So, if you have to read a contract, you can either
mentally make these adjustments, or let your word processor do it for you -
either way, you will find the contract much more understandable and less
soporific. Your eyelid muscles will thank you. And of course, it goes without
saying, (but I will say it anyway, for the avoidance of doubt ), you can send me or
any of our Virginia business
attorneys your contracts and we will be happy to interpret them for
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