During last month’s Annual NEC User Group conference, I had a lively twitter debate with @ChrisHallamLaw, a Partner at Pinsent Masons, on the use of NEC3. He pointed me to his article: NEC as Easy as 1-2-3.
From reading between the lines, I don’t think he’s convinced by NEC’s preference for simplicity over substance.
NEC achieves simplicity through:
- The present tense – it causes lawyers ‘to shuffle uncomfortably in their seats’;
- Shorter sentences – I approve;
- Eradicating clause cross-references – hard to combine with clarity, even on a 500-Word Contract™;
- Using ordinary language –a worthy aim especially when your contract is intended for non-lawyers and people whose first language is not English;
- Subdividing clauses by bullet points – if you don’t need cross-references, you don’t need sub-clauses.
Chris argues that the raison d’etre of a written contract is to give legal certainty to the rights and obligations of the parties and to ensure they are legally enforceable. On this basis, simplicity is not an end in itself.
Rather than repeat the article, I want to pick up on two specific issues.
NEC drafts its obligations in the present tense. So instead of:
“the contractor shall carry out and complete the works”
“the contractor carries out and completes the works.”
Personally, I don’t like either of these clauses.
My main reason is that ‘shall’ has been interpreted as both permissive and mandatory. So ‘shall carry out’ does not necessarily mean ‘will’ nor does it oblige the contractor to do so. My 500-Word Contract prefers ‘must’.
Is Concise the Same as Clear?
According to ‘Write Like a Pro’ by Dr Marcia Riley “concise means direct or to-the-point….Brevity is not what matters: necessity is.” Just reducing the number of words (compared to the 55,000 of JCT 2011 SBC) does not necessarily result in clarity. Where normal contractual obligations are shoved into a works information document, this is a backwards step, as the article notes.
In my 500-Word Contract™, only data, definitions and document references are in a separate section. All the parties’ duties and powers are in the main body of the agreement – anything else is madness!
What Should Be Our Aim?
The article concludes “lawyers have long been criticised for producing long winded and impenetrable contracts which can be understood… by other lawyers. Simplicity and brevity are often trampled underfoot in an attempt to achieve watertight drafting and deal with every conceivable scenario… Although lawyers are (sometimes justifiably) criticised for using ten words when one will do, sometimes those ten words may be what keeps the parties away from the courts.”
My 500-Word Contract™ is drafted on the basis that it does not cover every eventuality or potential cause of dispute. It may not keep the parties away from the courts, but then it is not designed to be a safety net. It is meant to help the parties understand their obligations and work together.
Which would you prefer?