My series of 500-Word Contracts™ is designed to encourage the construction industry to rethink its contracts and to challenge the received wisdom of long, wordy contracts.
Drafting by Lawyers for Lawyers
One of the barriers to good drafting was worrying how the courts would interpret your contract…
My lawyer predecessors were conscious that judges interpreted their contracts literally, by pouring over the minutiae. Judges have always and still complain about contract drafting:
“I find great difficulty in understanding the desire of commercial men to embody so simple an obligation in a document which is quite unnecessarily lengthy, which obfuscates its true purpose and which is likely to give rise to unnecessary arguments and litigation as to its meaning” (Trafalgar House v General Surety 1995)
“It is lamentable that an eighteenth-century English concept should be used in this jurisdiction to confuse everybody, as we think it has confused a lot of people in this case” (Tins Industrial v Kono Insurance 1988)
“That this document is not the product of skilful drafting is… evidenced by the presence of the expression ‘and/or.’ Its use in this clause is unnecessary and confusing… the use of [that] expression… in any legal document is in any case open to numerous more fundamental objections of inaccuracy, obscurity, uncertainty or even as being just plain meaningless.” (Situ Ventures v Bonham-Carter, 2013)
Drafting by Users for Users
Following a clutch of recent cases, you can stop worrying!
The courts are moving towards interpreting contracts by working out what they should mean and how they can make the language work in practice, not by nit-picking. So use normal words and they will be given their normal meaning by the courts, and more importantly, you and your contract partner will understand your contract better.