Contracts win prizes for clarity

Contracts win prizes, although not in this case…

It is common ground that the Deed of Variation in this case would win no drafting prizes for precision or clarity. It included errors … which are acknowledged by both sides, and it also struggled to convey the essential agreement reached between the parties Perriam v Wayne 2011

In my Effective Contract Writing workshops, I ask delegates to rewrite award-winning contract extracts. None of the extracts won prizes for their precision or clarity – as winners of the Plain English Campaign’s Golden Bull awards (2016 winners), they have won prizes for their obscurity and complexity.

This is nothing new in law. One of my favourite quotes (for its unintentional irony) concerns the words of a performance bond that haven’t changed for years. Lord Jauncey of Tullichettle in the House of Lords said:

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

Clarity means not just using simple terms but making the purpose (intention) of a clause or contract clear to the users and to outsiders.

What’s Your Intention?

Even the simplest set of terms and conditions (like those of the app SimpleNote) lack clarity. One of its Terms of Use says:

  • We are not responsible for any information stored with the Service.

But does this mean:

  • Please do not store any information on our Service?
  • We are not liable if any information that you store on our Service is lost (though our or anyone else’s fault)?
  • We cannot guarantee that we can retrieve any information that you store on our Service?
  • We cannot guarantee that information stored on our Service is safe from hackers, although we have security measures to protect your information?

Clarity is essential if we are to avoid unnecessary arguments and (even worse) court proceedings just to find out what the contract meant.

What should you do?

If you read a contract and don’t understand what it means, don’t ask a lawyer, ask the person who sent it! If they don’t know then you have a good reason to renegotiate that issue.

Cases: Perriam Ltd v Wayne & Anor [2011] EWHC 403 (TCC); Trafalgar House Construction (Regions) Ltd v General Surety & Guarantee Co Ltd (HL) [1995]

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