Who do we… who should we write contracts to please?
Not, as you’ve noticed, who do we write contracts for. But who should we write contracts to please.
If a client asks me to write a contract for their business, there are two primary readers I need to consider:
- my client – the organisation who is asking for my help, and
- their clients or suppliers – those who will receive to complete a deal with my clients.
Effective writing should be aimed at reader who is high-school educated – not the aristocracy, not the lawyers, not academics and not the professional classes. We need to make sure the widest possible number of readers can understand its terms.
Very few of my clients, and very few of their clients or suppliers are lawyers. My clients may include academics, researchers, highly-trained professionals, and I once wrote a building contract for a member of the aristrocracy (for an orangerie, nonetheless). Their clients may even include lawyers.
But generally, contracts should be written to please members of the public:
“The overriding objective in [interpreting a contract] is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean.”
We need to write for a reasonable person so that they interpret and understand the contract before the event exactly the same way that a tribunal or court might interpret it after the event.
What should you do?
If you’re a client (a buyer of legal services) then ask your contract writers to create terms and contracts that you can fully understand.
If you’re the contract writer, then aim to please your clients and their clients or suppliers, rather than the pedantic lawyer who may one day be reviewing it.
Case: Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279