Drafting is different from legal writing. Legislation that may affect client’s position:
Sale of Goods Act 1979 This act automatically incorporates certain terms
Legal writing = communicating information or advice, usually in a letter into contracts unless they are specifically excluded (eg. Unfair Contract
to a client or to another professional, or in a report or a memorandum Terms Act 1977).
presenting the results of legal research.
Drafting = the preparation of formal legal documents which, once Meet formal drafting requirements:
executed, are intended to create legal relations between two or more
parties. Two types of contract:
1. a contract/agreement under hand (i.e. an agreement which is
PRINCIPLES OF EFFECTIVE DRAFTING 2.
not intended to take effect as a deed); and
a deed (i.e. an agreement requiring an additional execution
In the exam: formality beyond a simple signature).
• Firstly, ensure that you can spot spelling and other errors in the
Agreement. A contract should take the form of a deed if:
• Secondly, you will likely be asked to re-draft/advise on clauses in 1. it is a document which is legally required to be executed as a
the Agreement so make sure that you are familiar with the deed - e.g. certain mortgages of property, or the grant of a power
different clauses that might come up. of attorney
2. it is desirable to have a limitation period for an action arising
from the contract of twelve years (a deed) rather than six years
CONTENT: (an agreement under hand); or
Your document should: The execution requirements for a document vary according to the type
1. give effect to client's objectives and instructions; of document and the parties to it.
2. contain all relevant facts and information;
3. accurately address all relevant legal issues; Follow relevant precedents, where appropriate:
4. meet formal drafting requirements;
5. follow relevant precedents, where appropriate; When using precedent or relying on a previous draft:
6. protect the client's interests and objectives; and 1. ensure that you select the best and most up to date
7. be clear and consistent throughout. precedents available;
2. if you have to incorporate more than one precedent, ensure
Give effect to client’s objective and instructions: that there are no inconsistencies in the definitions or the
wording of the final document, paying particular attention to
The contract document you draft must accurately reflect the agreement any cross references or renumbering of the clauses; and
reached between the parties. 3. where a precedent or part of a precedent fits your transaction,
don’t re- invent the wheel or re-draft for the sake of it.
Identify the purpose of your document - what does the client want to
achieve? The client will not be aware of all the information and issues Protect the client's interests and objectives:
which will need to be covered and may not have thought of everything
relevant to the transaction. It is up to you to use analytical skill and Think about the practicalities, potential eventualities and risks. Bring
foresight to ensure that everything relevant to the transaction is these to the client’s attention and deal with them appropriately in the
included. Also identify possible options not yet considered by your client. document.
Contain all relevant facts and information: Be clear and consistent throughout:
The document should address all matters of fact and law. Make sure references to persons and things are used consistently
throughout the document. - Eg. if a contract refers to the ‘Buyer’ you
To include all relevant information, use the “6 Ws” when drafting: should not use the word ‘Purchaser’ later in the document.
1. Who is to perform the obligation?
2. What is the obligation to be performed? Example:
3. When is the obligation to be performed?
4. Where is the obligation to be performed? Original clause:
5. To Whom is the obligation to be performed? ‘The Company may be dissolved with the consent of all its shareholders,
6. What if - What are the consequences of a failure to perform an provided that any member of the company desiring a dissolution shall
obligation? give notice in writing to all the other Members.’
Eg. The buyer shall pay the sum of £10,000 on 1 November 2021. Re-draft:
Where is the buyer to pay the money? To whom? How is payment to be ‘The Company may be dissolved if all its members agree. Any member
made? What if payment is not made? What if payment is made early? proposing that the Company be dissolved shall give written notice to all
the other members.’
Example:
You are acting for the buyer of a residential property. The seller and Issues with the original clause:
buyer have agreed that the seller will be taking a fireplace with it when - Two inconsistent terms – shareholder/Member and
it leaves. It is anticipated that the removal will cause some damage to Company/company.
the property. Draft an appropriate clause on behalf of the buyer. - There are two elements to this clause: the need for all members
to agree to the dissolution and the need for a member wanting
Address the 6 Ws: dissolution to give written notice. Separate these into two
1. Who was going to do what (remove the fireplace) by when (by sentences.
completion)
2. Where - from the property itself but ensure that you refer to the
correct room. STRUCTURE:
3. Whom - not relevant here.
4. What if - potential damage? Add an obligation on the seller to Your document should:
make good any damage caused prior to completion of the sale. 1. be clearly laid out and it should categorise material
logically and under appropriate clause headings;
‘The Seller shall remove the fireplace in the room and shall make good 2. use paragraphing and tabulation where necessary;
any damage caused to the remainder of the Property before 3. use definitions and schedules, where appropriate; and
completion.’ - Seller and Property should be defined terms. 4. avoid conflicting provisions.
Address all relevant legal issues:
Categorise material logically and under clause headings:
Include terms in the contract to protect your client’s position. Such
terms may need to satisfy common law or statutory requirements in Use a logical order for the structure of your document.
order to be enforceable.
Deal with different topics or concepts under separate clauses. Two or
Share purchase agreement: more unconnected ideas which relate to the same subject or clause
consider whether any restrictions on the selling shareholders to heading should be dealt with under separate sub-clauses or paragraphs.
compete with the business of the target company are required to
protect the buyer and how such restrictive covenants should be drafted
to ensure they are enforceable.
BLP Drafting – Revision notes | Page 1 of 7
, Use paragraphing and tabulation where necessary: STYLE AND LANGUAGE:
Aim to break up long sentences. Divide any clauses consisting of more Your document should:
than one sentence into sub-clauses. 1. be clear, precise and easy to understand;
2. prefer the active voice;
Example: 3. use correct grammar, punctuation and spelling; and
4. respect the rules of interpretation adopted by the English
Original clause: courts.
15. Termination Clear, precise and easy to understand:
The Company is entitled to terminate the contract on immediate written Avoid archaic legal expressions, slang, abbreviations, foreign phrases
notice to the Contractor if the Contractor is in material breach of this and vague words.
Agreement, a liquidator, administrator or administrative receiver is
appointed in respect of the Contractor or any of the representations Use the correct tense:
made in clause [ ] proves to have been incorrect or misleading as at the * ‘Shall’ or ‘must’ - use in the imperative sense to impose an
date of this Agreement, such notice will be delivered to the Contractor obligation. - e.g. The Supplier shall deliver the Goods to the
at [address], or by facsimile to [fax number] or by email to [email Buyer.
address] or to such other address, facsimile number or email address as * ‘Will’ – use this to signify the future.
the Contractor may notify to the Company from time to time. * ‘May’ – use to create rights or options. - e.g. The Supplier may
increase the Price for the Goods.
Re-draft: * Draft general provisions in the singular. Words such as ‘none’
and ‘any’ should be followed by a verb in the singular.
15. Termination
Care needed:
15.1 The Company is entitled to terminate this Agreement 1. Use consistent language. Use the same terms throughout an
immediately on giving written notice to the Contractor if: agreement.
2. Avoid using ‘redundant pairs’ e.g. ‘alter or change‘ any and
(a) the Contractor is in material breach of this Agreement; each’ ‘custom and usage’ ‘full and complete’ ‘have and hold’
(b) a liquidator, administrator or administrative receiver is ‘known and described as’ ‘made and entered into’ ‘save and
appointed in respect of the Contractor; or except’ ‘separate and distinct’ ‘undertake and agree’
(c) any of the representations made in clause [ ] proves to have been
incorrect or misleading as at the date of this Agreement. 3. Dates, times and figures:
3.1 When drafting a time limit, use these terms: ‘from and
15.2 Any notice given under clause 15.1 must be delivered to the excluding’ or ‘from and including’ or the word ‘inclusive’
Contractor at [address], or by facsimile to [fax number] or by could be inserted after the dates to avoid ambiguity.
email to [email address] or to such other address, facsimile 3.2 Use ‘on or before’ rather than ‘by’
number or email address as the Contractor may notify to the 3.3 Use ‘after’ or ‘from and excluding’ rather than ‘from’
Company from time to time. 3.4 Use ‘to and including’ or ‘to but excluding’ rather than
‘until’ or ‘to
Numbering: 3.5 Use ‘between’and state whether the period is inclusive
You may use either one of the below two numbering systems. or exclusive of the first and last days.
Whichever system you use, keep the numbering consistent. - Look out
for wrongly numbered clauses in the exam eg. where Clause 9.2.3 should 4. Excluded middle: ‘The Seller will sell the property within 2 years
be 9.2.2. if the company profits are less than £5 million and within four
years if they are more than £5 million’. What if profits are exactly
£5 million? Use the phrases ‘under and including’, or ‘over and
The Conventional System: The Modern System: including’.
Clauses 1, 2, 3 etc. 1 5. Uncertain period: ‘The Buyer shall pay for the Goods within 21
Sub-clauses (A), (B), (C) 1.1, 1.2 days’ When does the 21 days run from? Date of delivery? Date
Paragraphs (i), (ii), (iii) 1.1.1, 1.1.2 etc. of receipt of invoice?
Sub-paragraphs (a), (b), (c)
Sub-sub-paragraphs (1), (2), (3) 6. Be clear about ‘subject to’, ‘notwithstanding’ and ‘without
prejudice to’:
• If Clause A begins ‘Subject to Clause B’, Clause B
overrides it.
Use definitions and schedules, where appropriate: • If Clause A begins ‘Notwithstanding Clause B’, it
overrides Clause B.
There is no point in defining a word or phrase that is only used once in • If Clause A begins ‘Notwithstanding any other provision
the agreement. of this Agreement’, it overrides all the other clauses in
that agreement.
A list of all definitions will appear in a separate section at the beginning • If two clauses begin ‘Notwithstanding any other
of the agreement and should be in alphabetical order. provision of this Agreement’, care must be taken to
Exception: when referring to “this Agreement”, Agreement should ensure that the two clauses do not conflict.
always be capital without it actually appearing in the list of definitions • If Clause A is ‘without prejudice to Clause B’, nothing in
Clause A impairs the effectiveness of Clause B.
All defined words/phrases should be capitalised.
7. ‘Reasonable’ and ‘best’ endeavours:
Example: 7.1 “Best endeavours” = the party must take every step it
‘Premises’ means the Buyer’s premises located at 9 Westbury Road, reasonably can to fulfil the contractual obligation. It is
Watford, Herts, WD1 2BR. less onerous than an absolute obligation and a party
need not take a step which would be “commercially
Avoid conflicting provisions: ruinous”.
7.2 “Reasonable endeavours” = it would be sufficient to
Make sure to avoid conflicting provisions. If two provisions conflict, discharge the obligation if the party only took some and
ensure that one of the provisions is expressly stated to take precedence not all of those steps. (lower standard) This is also the
over the other. preferred expression.
7.3 Change either of the above to ‘shall’ if the contract is
Example: not meant to give the other party a way to escape its
Clause 4 of an agreement states that the agreement will run for a fixed obligations by arguing that he did all that was expected
period of twelve months. of him under ‘reasonable endevours’.
Clause 7 of the agreement lists the events giving rise to a right to
terminate the agreement early. Use the active voice:
Clause 4 should be expressed to be ‘subject to’ clause 7.
Active voice: the ‘doer’ appears in front of the verb. - e.g. ‘the
Buyer shall pay for the Goods by 30 May 2021’.
Passive voice: the ‘doer’ follows the verb. - e.g. ‘the Goods shall be paid
for by 30 May 2021 by the Buyer.’
BLP Drafting – Revision notes | Page 2 of 7
