In ‘the Art of Readable Writing’ (1949) Rudolph Flesch provides advice that applies to writers of legal documents as well as blog posts, books, and other media. Here are some of his tips, with relevant legal examples, to help you write contracts that others can read, understand and use.
Benefits of Readable Contracts
Flesch says that by simplifying your style you readers won’t feel you are talking down to them… they will “read you faster, enjoy it more, understand it better, and remember longer“. Even in 1949 these statements could be proven by scientific evidence. More current evidence comes from Stefania Passera’s research (read more), Comic Contracts (read more) and Clarity, the international association promoting plain legal language (read more). If that wasn’t enough, Professor Joe Kimble’s classic ‘Writing for Dollars, Writing to Please’ provides over 150 case studies on the cost savings from simple plain language.
If readable contracts are more likely to be read, understood and remembered, then they should result in fewer disputes. The ARCADIS global disputes surveys say we can avoid dispute with better contract administration (using the contract as intended), fair risks and balances, and accurate contract documents (both of which can only be achieved if the contract is read and understood). So being able to read a contract is critical to avoiding disputes.
Can a readable contract avoid all disputes? No, because mistakes are a sign that the parties are human. The best way to avoid disputes is, however, for the parties to keep the promises made in their contract, which they can’t do if they can’t read it!
Can a readable contract be watertight? I don’t think there is such a thing as watertight contract (read more). Flesch does not recommend using ‘three word where one will do’ (read more) but suggests this way of ensuring your contract will be interpreted as you intend:
You cannot prevent a reader from reading meaning into your words that you didn’t think of; but you can guide [her] interpretation of the more abstract words – which are the most dangerous – by using as many concrete cases, illustrations and examples as possible [p164]
We rarely include examples, tables, or charts in our contracts. NEC was first based on flowcharts but they don’t form part of the contract conditions – for some reason the publishers preferred to use words instead. See Sutton Housing v Rydon where examples of how an incentive scheme would work were held to be legally binding as they were the only concrete illustrations of an intended, and omitted, term.
My next post will look at a process for writing readable contracts.