BPP University College Of Professional Studies Limited (BPP)
Notes on Drafting for the LPC at BPP University. These revision notes summarise key SGS course content in a way that is easy to understand and includes exam examples and boilerplate clause wording.
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Drafting
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BPP LPC – Drafting Exam Notes
Exam Tasks
1. Free draft new clauses to reflect your client’s instructions.
2. Amend or appraise some existing poor drafting.
3. Proofread for e.g. typographical errors, grammar errors and inconsistencies.
4. Explain the purpose and effect of certain clauses in a commercial agreement.
Drafting Guide – The Principles and Conventions of Effective Drafting
Content
1. Aim to give effect to the client’s objectives and instructions.
2. Contain all relevant facts and information and accurately address all relevant legal issues.
3. Meet formal drafting requirements and follow relevant precedents, where appropriate.
4. Protect your client’s interests and objectives.
Structure
1. Clearly lay out and categorise material logically and under appropriate clause headings.
2. Use paragraphing and tabulation where necessary. Use definitions and schedules, where
appropriate. List of definitions should be in alphabetical order. Capitalise defined terms. Must
incorporate Schedules into the agreement – refer to in definitions.
3. Avoid conflicting provisions. Link clauses. ‘Subject to’
Style and Language
1. Draft in a style which is clear, precise and easy to understand.
2. Prefer the active voice.
3. Use correct grammar, punctuation and spelling.
When drafting the parties’ obligations, consider the 6 Ws
- Who is to perform the obligation?
- What is the obligation to be performed?
- When is the obligation to be performed?
- Where is the obligation to be performed?
- To Whom is the obligation to be performed?
- What if – What are the consequences of a failure to perform an obligation?
Example: The Seller shall remove the fireplace in the [ ] room and shall make good any damage caused
to the remainder of the Property before the Completion Date.
Also consider any practical or legal points a draft clause should cover which the client has not
necessarily thought about but which if included would be beneficial, e.g. what form notice or the
amount of notice. You should add value by suggesting written notice and making a sensible suggestion
of the number of days’ notice required. If a commercial suggestion, square bracket it [ ].
- In all contracts consider the importance of reasonableness of obligations.
- Always require invoices in any payment situations. If cash, make payment ‘to the Seller in cash
by telegraphic transfer to the Seller’s Bank Account’.
, Structure of a Typical Commercial Agreement
Front cover.
- Description of the document, clearly indicating the transaction to which it relates.
- Date of the document – Leave blank until signed.
- Names of the parties.
- Firm’s name and address.
Commencement, date and parties.
- Description of the document e.g. This Agreement is made on
- A space should be left for insertion of the date when the document is completed.
- Names of parties, full name and address. Use registered name, registered number and address
of registered office for companies.
- Parties are defined, usually by their legal function rather than by name.
Recitals (not essential but desirable).
- Sets out a brief background or history to the agreement. Can also be used to refer to earlier
agreements in the case of a supplemental agreement.
- Recitals are generally not binding and do not form part of the operative provisions, but care
must still be taken when drafting recitals. If the operative provisions are found to be
ambiguous, the recitals may be referred to by the courts to determine the parties’ intentions.
Definitions and interpretation.
Operative provisions:
- Terms defining the scope of the agreement (such as duration).
- Conditions precedent (setting out conditions to be satisfied before the agreement comes into
force). e.g. novation of a key contract, obtaining a government licence or receipt of
competition law clearance. If the contract is signed conditionally, completion will only take
place once the conditions precedent have been fulfilled.
- Obligations of the parties.
- Options or rights in favour of one of the parties.
- Warranties and indemnities.
o A warranty is a binding statement of fact made by one party to the other about a
particular state of affairs. Warranties may be used where one party is entering into
the agreement on the basis of certain assumptions about the other; they ensure that
those assumptions are given contractual force. If untrue, remedies governed by
normal contractual principles.
o In addition to a contractual claim, warranties also force disclosure (disclosure letter).
o An indemnity is a contractual obligation by which one party agrees to keep another
protected from a specific loss.
Boilerplate clauses (standard clauses inserted into all agreements, but which may be important and
subject to negotiation). Deal with the way in which the contract operates.
, Standard Boilerplate Clauses
1. Entire Agreement Clause
- The purpose of an entire agreement clause is to prevent the party relying upon it from being
liable for any statements or representations except as expressly set out in the agreement.
- This provides commercial certainty for the parties and ensures that all the parties’ obligations
are recorded in a set of identifiable contractual documents.
Entire Agreement
(a) This Agreement contains the entire and only agreement between the parties and supersedes
all previous agreements between the parties respecting the subject matter of this Agreement.
(b) Each party acknowledges and agrees that in entering into this Agreement it has not relied on,
and shall have no remedy in respect of, any statement, representation, undertaking or
warranty, whether oral or in writing, save as expressly set out in this agreement.
(c) Each party acknowledges and agrees that the only remedy available to it for breach of this
Agreement shall be for breach of contract under the terms of this Agreement.
(d) Nothing in this clause shall limit or exclude liability for fraud.
2. Governing Law and Jurisdiction Clause
- Where a contract is international, the parties should expressly agree on governing law and
jurisdiction at the outset – without such a clause complicated rules under international
regulations will apply to determine the applicable law and jurisdiction which may not be in
the client’s interests.
- Governing law and jurisdiction do not have to be the same.
- Must choose whether the term states that the courts’ jurisdiction will be exclusive or non-
exclusive.
‘The parties irrevocably agree that the courts of England and Wales shall have
exclusive jurisdiction to settle any claim, dispute or difference arising out of or in
connection with this Agreement, including any question in relation to its existence,
validity or termination or the legal relationships established by this Agreement
(“Proceedings”). The parties submit to the exclusive jurisdiction of such courts and
accordingly any Proceedings may be brought against the parties or any of them or any
of their respective assets in such courts.’
- Wide enough to cover both contractual disputes and other issues e.g. tortious disputes arising
out of or in connection with the Agreement.
‘This agreement shall be governed by and construed in accordance with English law.’
‘The parties irrevocably submit to the exclusive jurisdiction of the English courts.’
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