On the front flap of A New Approach to the Standard Form of Building Contract (which refers to the 1963 RIBA form), the publishers say:
By the nature of its legal terminology and complex provisions, [the form] is extremely difficult to apply in everyday practice without constant advice
The book is in fact a series of flowcharts used to express each clause or process as diagrams which ‘clarify hitherto complex problems and which help to make this form of contract readily understandable by all ordinary users of it‘.
The Foreword to the book, by David Waterhouse, says the flowcharts ‘explain simply the meaning and purpose of each clause, the consequences which flow if its provisions are followed and if they are not, and the bearing which each clause on any other clause...’
Interestingly, this was prefaced by sympathy and admiration for its users – almost as if the drafters of this contract had not given any thought to ordinary construction folk who have to delve into its depths and use it. [What do you think?!]
The Foreword also confirms that the flowcharts paraphrase the provisions which provides greater clarity… The author Glyn Jones also says that there was ‘an urgent need to create clarity from complexity‘ and confirmed he’d had to ‘grapple almost interminably with gobbledegook‘.
Jones also comments that if a legal statement (or clause) has been found unintelligible by ordinary people, it should be rejected and revised – to avoid only specific people, such as lawyers, having a monopoly on understanding the contract.
It’s a shame that publishers did not listen – contracts have tended to get more complex since the 1963 edition, not simpler and clearer.
In praise of flowcharts
The Foreword also suggests that drafters adopt flowcharts to resolve inconsistencies and anomalies in their standard forms. For me, I’d have liked the flowcharts provided to users as well as writers, to make it easier for everyone grasp the content quickly and apply it in practice.
Neither RIBA or JCT produce flowcharts of their standard forms, and the Book was never updated for future editions. NEC does produce flowcharts for its suite, although the text of the clauses is all that the parties or tribunal can rely on when interpreting the contract.
As part of my Legal Technology and Innovation Certificate, I created a flowchart for contractor claims under clause 20 of FIDIC Yellow Book. It was very time-consuming and highlighted how many ‘dead ends’ there were within that provision.
Flowcharts are – as the book notes rather presciently – ‘the forerunner to [computer] program writing‘. We must first reduce a contract process to pseudo-code, so flowcharts for contract clauses are an essential pre-requisite for automating contracts. Flowcharts require binary decisions, objective data and clear complete processes.
Glyn Jones, the author, was considerably ahead of his time in proposing that computers could use the contracts to solve disputes.
What should you do?
Instead of putting up with complex contracts, ask your trade association or professional body or the publishers of your standard forms, to adopt clear wording that everyone can understand.
If you prefer non-text explanations, create, demand or use flowcharts for contract processes so you can analyse them and check for clarity and completeness. This is especially true when contracts have been amended.
Let’s demand contracts that meet the needs of all users.