Drafting is different from legal writing. Meet formal drafting requirements:
Legal writing = communicating information or advice, usually in a letter Two types of contract:
to a client or to another professional, or in a report or a memorandum * A contract/agreement under hand (= an agreement which is not
presenting the results of legal research. intended to take effect as a deed)
Drafting = the preparation of formal legal documents which, once AND
executed, are intended to create legal relations between two or more * A deed (= an agreement requiring an additional execution
parties. formality beyond a simple signature)
PRINCIPLES OF EFFECTIVE DRAFTING A contract should take the form of a deed if:
* It is a document which is legally required to be executed as a
In the exam: deed – eg. certain mortgages of property, or the grant of a power
1. Spot spelling and other errors in the agreement. of attorney
2. You will likely be asked to re-draft/advise on clauses in the * It is desirable to have a limitation period for an action arising
agreement so make sure that you are familiar with the different from the contract of 12 years (a deed) rather than 6 years (an
clauses that might come up. agreement under hand).
The execution requirements for a document vary according to the type
CONTENT: of document and the parties to it.
Your document should: Follow relevant precedents, where appropriate:
1. Give effect to client's objectives and instructions
2. Contain all relevant facts and information When using precedent or relying on a previous draft:
3. Accurately address all relevant legal issues * Ensure that you select the best and most up to date precedents
4. Meet formal drafting requirements available
5. Follow relevant precedents, where appropriate * If you have to incorporate more than one precedent, ensure that
6. Protect the client's interests and objectives there are no inconsistencies in the definitions or the wording of
7. Be clear and consistent throughout the final document, paying particular attention to any cross
references or renumbering of the clauses
Give effect to client’s objective and instructions: * Where a precedent or part of a precedent fits your transaction,
don’t re-draft for the sake of it.
The contract you draft must accurately reflect the agreement reached
between the parties. Protect the client's interests and objectives:
Identify the purpose of your document – what does the client want to Think about the practicalities, potential eventualities and risks. Bring
achieve? these to the client’s attention and deal with them appropriately in the
* The client will not be aware of all the information and issues document.
which must be covered.
* It is up to you to use analytical skills and foresight to ensure that Be clear and consistent throughout:
everything relevant to the transaction is included.
* Also identify possible options not yet considered by your client. Make sure references to persons and things are used consistently
throughout the document. – eg. if a contract refers to the ‘Buyer’ you
Contain all relevant facts and information: should not use the word ‘Purchaser’ later in the document.
The document should address all matters of fact and law. Example:
To include all relevant information, use the 6 Ws when drafting: Original clause:
* Who is to perform the obligation? ‘The Company may be dissolved by all its shareholders giving consent to
* What is the obligation to be performed? the dissolution, provided that the member of the company desiring a
* When is the obligation to be performed? dissolution must give written notice to all the other Members.’
* Where is the obligation to be performed?
* To Whom is the obligation to be performed? Issues with the original clause:
* What if – What are the consequences of a failure to perform an 1. Two inconsistent terms – shareholder/Member and
obligation? Company/company.
2. There are two elements to this clause: the need for all members
Eg. The buyer shall pay the sum of £10,000 on 1 November 2022. to agree to the dissolution and the need for a member wanting
Where is the buyer to pay the money? To whom? How is payment to be dissolution to give written notice. Separate these into two
made? What if payment is not made? What if payment is made early? sentences.
Example: Re-draft:
You are acting for the buyer of a residential property. Seller and Buyer ‘The Company may be dissolved provided that all its members agree.
have agreed that the seller will be taking a fireplace with it when it Any member proposing dissolution of the Company must give written
leaves. It is anticipated that the removal will cause some damage to the notice to all the other members.’
property. Draft an appropriate clause on behalf of the Buyer.
STRUCTURE:
Address the 6 Ws:
* Who was going to do what (remove the fireplace) by when (by Your document should:
completion) * Be clearly laid out and it should categorise material logically and
* Where – from the property itself but ensure that you refer to the under appropriate clause headings
correct room. * Use paragraphing and tabulation if needed
* Whom – not relevant here. * Use definitions and schedules if needed
* What if – potential damage? Add an obligation on the seller to * Avoid conflicting provisions
make good any damage caused prior to completion of the sale.
‘The Seller must remove the fireplace in the room and must make good Categorise material under clause headings:
any damage caused to the remainder of the Property before
completion.’ – Seller and Property should be defined terms. Use a logical order for the structure of your document.
Address all relevant legal issues: Deal with different topics or concepts under separate clauses. Two or
more unconnected ideas which relate to the same subject or clause
Include terms in the contract to protect your client’s position. Such heading should be dealt with under separate sub-clauses or paragraphs.
terms may need to satisfy common law/statute to be enforceable.
Use paragraphing and tabulation:
Legislation that may affect client’s position:
* Sale of Goods Act 1979 This act automatically incorporates Aim to break up long sentences. Divide any clauses consisting of more
certain terms into contracts unless they are specifically than one sentence into sub-clauses.
excluded.
* Unfair Contract Terms Act 1977 This act operates to void
contract clauses that are deemed unfair under the act.
BLP Drafting – Revision notes | Page 1 of 7
, Example: Use the correct tense:
* ‘Shall’ or ‘must’ – use to impose an obligation. – eg. The Service
Original clause: provider shall provide the Service to the Client.
* ‘Will’ – use this to signify the future.
10 Termination * ‘May’ – use to create rights/options. – eg. The Service provider
may increase the Price for the Services from time to time.
The contract may be terminated by the Company on immediate notice * Draft general provisions in the singular.
in writing to the Service provider provided that the Service provider is in
breach of this Agreement, the Service provider goes into administration Care needed:
or insolvent liquidation or any of the representations made under clause * Ensure that you use consistent language/the same terms
5 is proven to be incorrect or misleading, and such notice must be throughout your document.
delivered to the Service provider at [address] or by email to [email] or to * Do not use redundant pairs – ‘any and each’, ‘undertake and
such other address or email address as the Service provider may notify agree’, ‘alter or change’, ‘custom and usage’, ‘have and hold’,
to the Company from time to time. ‘full and complete’, ‘made and entered into’, ‘known and
described as’, ‘save and except’.
Re-draft:
* Dates, times and figures:
10 Termination — For time limits, use these terms: ‘from and excluding’ or
‘from and including’ or the insert the word ‘inclusive’
10.1 The Company may terminate this Agreement immediately by after the dates.
giving written notice to the Service provider provided that: — Instead of ‘by’, use ‘on or before’
— Instead of ‘from’, use ‘after’ or ‘from and excluding’
a) the Service provider is in breach of this Agreement; — Instead of ‘until’ or ‘to, use ‘to and including’ or ‘to but
b) the Service provider goes into administration or excluding’
insolvent liquidation; or — Use ‘between’ and state that the period includes or
c) any of the representations made under clause 5 is excludes the first/last day.
proven to be incorrect or misleading.
* Excluded middle:
10.2 The Company must deliver any notice given under clause 10.1 to ‘The Seller will sell the property within 2 years if the profits of
the Service provider at [address] or by email to [email] or to such the Company are less than £2 million and within two years if they
other address or email address as the Service provider may are more than £2 million’. What if profits are exactly £2 million?
notify to the Company from time to time. Use the phrases ‘under and including’, or ‘over and including’.
Numbering: * Uncertain period:
You may use either one of the below two numbering systems. ‘The Buyer must pay for the Goods within 7 days’ When does the
Whichever system you use, keep the numbering consistent. – Look out 7 days start? The date of delivery or receipt of the invoice?
for wrongly numbered clauses in the exam eg. where Clause 9.2.3 should
be 9.2.2. * Use subject to/notwithstanding/without prejudice to:
— If Clause 1 starts with ‘Subject to Clause 2’: Clause 2
overrides it.
The Conventional System The Modern System — If Clause 1 starts with ‘Notwithstanding Clause 2’: Clause
1 overrides Clause 2.
Clauses 1, 2, 3 1 — If Clause 1 starts with ‘Notwithstanding any other
Sub-clauses (A), (B), (C) 1.1, 1.2, 1.3 provision of this Agreement’: Clause 1 overrides all other
Paragraphs (i), (ii), (iii) 1.1.1, 1.1.2, 1.1.3 clauses.
Sub-paragraphs (a), (b), (c) — If 2 clauses start with ‘Notwithstanding any other
Sub-sub-paragraphs (1), (2), (3) provision of this Agreement’, ensure that the 2 clauses
do not conflict.
— If Clause 1 is ‘without prejudice to Clause 2’: Clause 1
Use definitions and schedules: will not affect Clause 2 negatively.
There is no point in defining a word or phrase that is only used once in * ‘Reasonable’ and ‘best’ endeavours:
the agreement. — “Best endeavours” = when using best endeavours, you
must take every step you reasonably can, to fulfil the
A list of all definitions will appear in a separate section at the beginning obligation. This a lower standard than an absolute
of the agreement and should be in alphabetical order. obligation, as using best endeavours, you need not take
Exception: when referring to “this Agreement”, Agreement should “commercially ruinous” steps.
always be capital without it actually appearing in the list of definitions — “Reasonable endeavours” = it would be sufficient to
discharge the obligation if the party only took some and
All defined words/phrases should be capitalised. not all steps (lower standard). This is also the preferred
expression.
Example: — Change reasonable/best endeavours to ‘shall’ if the
‘Premises’ means the premises located at 93 Cassiobury Road, Watford, contract is not meant to give the other party a way to
Hertfordshire, WD18 4BX. escape its obligations by arguing that they did all that
was expected of them under ‘reasonable endeavours’.
Avoid conflicting provisions:
Use the active voice:
Make sure to avoid conflicting provisions. If two provisions conflict,
expressly state that one of the provisions is to take precedence over the Active voice: the ‘doer’ appears in front of the verb. – eg. ‘the Buyer shall
other. pay for the Goods by 30 May 2023’.
Example: Passive voice: the ‘doer’ follows the verb. – eg. ‘the Goods shall be paid
Clause 4 of an agreement states that the agreement term will be 24 for by 30 May 2023 by the Buyer.’
months.
Clause 7 of the same agreement lists the events giving rise to early Use correct grammar/punctuation/spelling:
termination.
Clause 4 should be stated to be ‘subject to’ clause 7 to ensure that clause Check the following:
7 is enforceable. * Check the title page and front page for errors, especially in the
name/address/company number of the parties.
STYLE AND LANGUAGE: * Commencement dates should be correct
* Check the list of definitions for missing quotation marks and
Your document should: make sure that all definitions are capitalised – eg. should be
* Be clear, precise and use simple wording ‘Licensee’.
* Use the active voice * List of definitions should be in alphabetical order.
* Use correct grammar/punctuation/spelling
* Follow the English courts’ rules of interpretation Check each clause for obvious mistakes:
* When writing a list, use ‘;’ and end the clause with ‘.’
Clear and precise: * Check for mentions of eg. ’Sellers’ where there is only one Seller
and vice versa.
Avoid archaic expressions, abbreviations, slang, latin phrases and * ‘this agreement’ should be ‘this Agreement’
vague words. * Check the Execution clause for errors in the parties’ names.
BLP Drafting – Revision notes | Page 2 of 7
