Drafting Agreements in Plain English
By : Nirav Pankaj Shah on 17 July 2009
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PRO CHAT CALL
Drafting Agreements in Plain English
Dr. K.R. Chandratre, FCS, Practising Company Secretary, Pune.
Many times it is found that
legal documents are badly
written, the main reason
being lack of simplicity.
This article advocates
use of plain English for
drafting agreements.
e-mail :
krchandratre@vsnl.net.†
krchandratreoffice@gmail.com
Why are legal documents badly written?
Most people read legal writing not because they like to but because they have to. Many of
them might like to read it, if the writers write it in a manner worth reading it. The main fault
of legal writing is the choice of words.
In his classic guidebook for clear writing, The Complete Plain Words, 3rd edition by Penguin
Books, page 38, Sir Ernest Gowers wrote: “The most prevalent disease in present-day writing
is a
tendency to say what one has to say in as complicated a way as possible. Instead of being
simple, terse and
direct, it is stilted, long-winded and circumlocutory; instead of choosing the simple word it
prefers the
unusual; instead of the plain phrase the cliché.”
Though Sir Ernest Gowers wrote that about any writing rather than only legal writing, what
he has said applies more aptly to legal writing than any other writing. Legal writers have the
tendency to write in the most complicated way without justification. Even where simple
words and phrases can be used without any harm to the sense which a legal writer wants to
convey (and perhaps used with more precision), the legal writer wouldn’t use it; he would
rather employ a complicated word to convey it.
Legal and secretarial writings are filled with heavy, unusual words and phrases which most
people don’t use in their writing. Legal writers are taught during their academic courses to
use unfamiliar, heavy words instead of simple words that even an ordinary person can
understand (everyday language) and even though the use of a plain word can achieve the
same result as the unfamiliar, heavy word is used to do.
Pretentiousness is a feature of legal writing. Legal writers use high-sounding big words
instead of plain unpretentious words. As Thomas S. Kane, has said in Oxford Essential Guide
to Writing, page 273, “Pretentiousness is using big words to no purpose (except perhaps to
show off). It results in long-winded, wooden sentences filled with deadwood. Shorter, simpler
words mean shorter, clearer sentences.”
The word choice: Don’t be highfalutin jargonist; use familiar words if the use of legalese is
avoidable.
Prefer the familiar word
Language experts insist that the most important facet of writing is word choice. The tendency
to use heavy, uncommon or pompous words makes legal writings complex and difficult to
read and understand. If you follow some basic rules in choosing words, your writing will
surely be worth reading. To liberate your readers from the misery of reading, the minimum
that we should do is to follow the advice of H W Fowler and F G Fowler in The King’s English:
“Any one who wishes to become a good writer should endeavour, before he allows himself
to be tempted by the more showy qualities, to be direct, simple, brief, vigorous, and lucid.
The practical rules are:
� Prefer the familiar word to the far-fetched.
� Prefer the concrete word to the abstract.
� Prefer the single to the circumlocution.
� Prefer the short word to the long.
� Prefer the Saxon word to the Romance.”
Agreements are peppered with legalese, words and phrases that are difficult to understand.
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Most legalese is, however, avoidable.
The choice of words plays an important role in making your
writing easy to understand to your readers. If you wish your reader
to understand your writing with no trouble, you must be very
careful in the choice of words. Then your writing becomes readable
by even those who do not belong to your profession (and a majority
of the readers of your writing are so, your clients most of whom
have no legal background). It is said that what most legal writers
write is unintelligible to even to their counterparts and judges.
Once you become sensitive to the reader’s comprehensibility, you
naturally become careful about the word choice.
On the contrary, if you are not bothered about your readers’
comprehensibility and you write what you think is right, your
writing is surely going to be clumsy and unintelligible to your
readers. So the choice of words is the main cause that makes your
writing readable or unreadable. This is no exception to legal and
secretarial or business writing. Unfortunately, however, legal
writers would seem to be writing without bothering about
readers’ comprehension; they write for themselves and their
counterparts or to show off and impress others.
Take four words that legal writers often use: commence, in the
event of, prior to and subsequent to. All these words have plain
alternatives start/begin, if, before and after respectively, which can
convey the same meaning as aptly and effectively as their
complicated counterparts, but legal writers wouldn’t use them
as though the complicated ones acquire supernatural power when
they are written in legal documents.
Take another example. Legal writers use the phrase impugned
order/judgment. No one uses this word in formal or informal
writing except legal writers. The word ‘impugn’ literally means
to attack physically or by argument or criticism; oppose or
challenge as false or questionable. Its overuse makes the writing
unnecessarily clumsy, and sometimes it is used wrongly, e.g.,
Once a person hands over management of a company voluntarily, he
cannot impugn the same. Wouldn’t the word question or challenge
(as a verb) do better here?
One of the main drawbacks of legal writing is the use of oldfashioned,
legally-flavoured, showy, heavy or uncommon, noneveryday
forms of expression. Most of these words and phrases
are not used in any other writing nor do they have any special
legal meaning or force; they are used only to impress; their use
in legal writings does not make any major contribution to the
meaning or substance of the piece of writing in which they are
used. They have come to be used conventionally. So, replacing
these words and phrases wouldn’t do any harm to the meaning
or substance of the piece of writing; on the contrary, that would
make your writing readable.
There are also many superfluous words and phrases used in legal
and secretarial writing; they are nothing but worthless garbage.
The most commonly used word is hereby. Likewise, thereby, hereto,
thereto, whereas, whereby, whereunder, thereunder, herein, hereinafter,
notwithstanding, whereas, etc. are some such words. If you omit all
the words and phrases which no one uses in writing or speech
except legal writers, and which are needless verbiage, it will not
make your document less effective or meaningful; on the
contrary, it will make your writing more precise, less verbose,
clear to understand and easy to comprehend; your readers will
not hate to read it.
Can we draft agreements in plain English?
This question is often asked and most lawyers feel that no legal
document can be written in simple, plain language. No one wants
to change the way of legal writing as no one is sure whether a
document written in plain English would stand the test of scrutiny
by a court. The fact, however, is that courts would surely not object
to the documents written in plain language if they are clear and
unambiguous. Perhaps, judges would be too happy if they are
asked to read documents which are concise, precise and readable.
This is true of all legal documents, including agreements.
In 1987, the Law Reform Commission of Victoria (Australia) voiced
its concern about the state of legal writing, in its report under title
Plain Language and the Law, in these words: “The language of the
law has long been a source of concern to the community. It has
been the subject of continuous literary criticism and satire. Critics
have highlighted its technical terms, its convolution and its
prolixity. These faults have been noted by judges and by practicing
and academic lawyers as well. Calls have regularly been made for
the use of a more simple and straightforward style. Some
improvements have been made in response to those calls. But
legal language remains largely unintelligible to most members
of the community. It even causes problems for members of the
legal profession. In some cases, the obscurity may arise from the
complexity of the law and of its subject-matter. In other cases,
however, it is due to the complexity of the language in which the
law is expressed. Some lawyers do not take sufficient care to
communicate clearly with their audience. Letters, private legal
documents and legislation itself are still drafted in a style which
poses unnecessary barriers to understanding.”
And a former Chairman of a group for promotion of plain English
in legal writing, Clarity, asked: “Why do lawyers write so that
no-one can understand them?” In his view, “They say it is because
they need to be precise, and that language has been honed by
centuries of litigation. But this is baloney. The real reason is that,
although they are paid for their skill with words, most lawyers
are dull and clumsy writers who have not broken the bad habits
they learnt as students.”
Many people wonder why writers of legal language follow an
involved or zigzag path. Legal writers often choose involved,
instead of straightforward, path. Involved language makes your
writing complicated, tedious, uninteresting, and people shun it.
On the contrary, straightforward language makes your writing
simple and readable. Even in ‘official’ documents which are meant
for common people, we write in involved way.
There is a wide range of published material in the USA, UK,
Australia and New Zealand where plain English movement has
been now deep-rooted. All these countries have comprehensive
Legislative Drafting Manuals which stress on statutory drafting
in plain English. The UK Companies Act, 2006 is the best example
of such drafting.
Drafting Agreements in Plain English
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Elementary Guidelines for writing in plain English
If the legal document drafters follow and regularly and
meticulously apply these twelve elementary techniques, it will
make your writing clear, accurate and concise and yet readable
and easily comprehensible to your readers (including judges).
1. Use words that most of the people know.
2. Cut out unnecessary words.
3. Keep sentences short.
4. Use a single word instead of a group of words.
5. Use minimum legalese and jargon.
6. Prefer the active voice to the passive voice.
7. Avoid non-English words and phrases.
8. Avoid old-fashioned words and phrases.
9. Avoid circumlocution: don’t use two words of the same
meaning.
10. Stay away from nominalization: use verbs instead of their
nouns.
11. Keep related words close to each other.
12. Use personal pronouns instead of abstract nouns.
If you follow the plain English guidelines in drafting agreements,
it would become a readable and easily comprehensible piece of
writing without causing any damage to the meaning, substance
and validity of the agreement, although it may not look like
conventional agreement. But that doesn’t matter! Rest assured
that your agreement will not be invalid because it has been drafted
in plain language and is readable.
Words and Phrases to be avoided
A major contribution to the archaic style of legal
writing comes
from a group of 36 words which continuously
brutally attack
legal writings. These 36 words, which play a key
role in making
legal writings complex and sound antiquated,
derive from here,
there, where, who and whom. They are:
Hereby Whereby
Herein Wherein
Hereof Whereof
Hereto Whereas
Hereunder Wheresoever
Herewith Whosoever
Hereafter Whomsoever
Hereinafter Whereupon
Hereinbelow Wherewith
Hereinabove Wheretofore
Hereinbefore Wherefore
Heretofore Wherefrom
Hereunto Whereon
Thereby Wherethrough
Therein Whereto
Thereof Whereunto
Thereto
Thereunder
Therefor
Theretofore
Hereunto: This antiquated used in only legal
writing deserves to
be thrown out of all legal writings. It’s a highly
stuffy word no one
uses in everyday writing or even in formal
(except legal) writing.
Use the plain alternatives to this Agreement
/Deed. For example, in
the highly clumsy phrase IN WITNESS
WHEREOF the parties hereto
have hereunto set and subscribed their
respective hands this day and year
first hereinabove written may be written thus:
The parties to this
Agreement signed it on the date mentioned
above; or still better: The
parties to this Agreement signed it on May 1,
2007.
Whereas: Traditionally, every legal document
begins with the
preamble (which is legally called ‘recitals’), after
the title clause,
that begins with Whereas. Legal documents
have abundance of
this clumsy and futile word, which is
unnecessary and its use is
grammatically dubious. It adds nothing to the
essence of the
document and its omission makes no harm. On
the contrary, it
helps to make the document clear and readable.
The legal
language experts have suggested that a legal
document, e.g. an
agreement, may start without Whereas. The
Black’s Law
Dictionary, 8th edition, states: “whereas is used
to introduce
contractual recitals, and the like, but modern
drafters increasingly
prefer a simple heading, such as “Recitals” or
“Preamble” You
may also use “Introduction”.
NOW
THEREFOR
THIS
AGREEMENT
WITNESSETH AND
IT IS HEREBY MUTUALLY AGREED AND
DECLARED AS
FOLLOWS: This complex and antiquated phrase
is found almost
always in formal agreements. This is a typical
example of a highsounding
but needless phrase that helps to make a legal
document
complex and pompous. This phrase has no
legal significance and
it only contributes to making an agreement
complicated; its
omission would not have any impact on the
validity or effect of
the agreement. The legal language experts have
suggested that a
legal document may do without this phrase.
In this phrase, ‘witnesseth’ (meaning ‘records’
or ‘shows’) is an
archaic word and is not found in any modern
dictionary; so it
doesn’t exist in modern English, though legal
writers continue
to use it. The Black’s Law Dictionary (8th
edition) states at page
1634: “This term, usually set in all capitals
commonly separates the
preliminaries in a contract, up through the
recitals, from the contractual
terms themselves. Modern drafters increasingly
avoid it as an antiquarian
relic…. It is an example of a form retained long
after its utility, and most
lawyers do not know what it means or even
what purpose it once served.”
So, you would do well to avoid this archaic
phrase and start your
agreement with the heading ‘Agreement’, or, at
the most, with
the simpler phrase: The Parties to this
agreement agree as follows:
Hereinafter referred to as: An unnecessary
wordy phrase, this
phrase is one more example of the way legal
writers use words
and phrases that contribute only to make the
writing complex
and verbose, with no contribution to the
meaning and substance
of the document. This is ‘disease’ in legal
writing.
Drafting Agreements in Plain English
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Put the abbreviated word or phrase in brackets with or without
inverted commas; e.g. (the Company), (“the Licensor”), etc. when
it occurs for the first time in the document and then use it
throughout the document to refer to the person or a thing intended
by it, eg ABC Pvt Ltd (the Company) or (ABC).
The testimonium clauses
The testimonium clause is the concluding part of a legal document,
beginning with In witness whereof, and containing the signatures
of the parties and witnesses. The position indicated for placing the
seal is called the locus sigilli. In the case of documents executed for
a company (or other incorporated entity), the testimonium clause
also refers to the affixation of the company’s common seal. Such
clauses are traditionally written in complex language and can be
simplified without any damage to the legal document. See the
following (plain versions are given in italics in brackets) :
� The Company has caused its Common Seal to be hereunto
affixed. (The Common Seal of the Company has been affixed to
this Agreement.)
� In witness whereof the parties hereto have caused their
respective common seals to be hereunto affixed the date
and the year first above written. (The Common Seal of the
Company was affixed to this Agreement on May 1, 2007.)
� The Common Seal of … Ltd. was hereunto affixed pursuant
to a resolution of the Board of directors of the company.
(The Common Seal of … Ltd. was affixed in accordance with the
resolution of the Board of directors of the Company.)
� The Managing Director has hereunto set his hand the day
and year first hereinabove written. (The Managing Director
has signed this Agreement on the date mentioned above.)
� In witness whereof the Mortgagor has hereunto put its
hand through its Director duly authorised for the purpose
the day and year first hereinabove written. (This Deed was
signed by …, Director of the Mortgagor on May 1, 2007.)
� The common seal of the within named … was hereunto
affixed pursuant to a resolution of its Board of Directors
passed at their Meeting held on … in the presence of …,
Director and …, Director. ((The Common Seal of … Ltd. was
affixed in accordance with the resolution of the Board of directors
of the Company.)
Given below is a sample agreement in plain English.
Sample Managing Directorís Agreement in Plain
English
Title: Managing Director’s Agreement
Effective from: 1 July 2007.
Signed on: 15 June 2007.
Parties: ABC Limited and Dr K R Chandratre.
Definitions:
1. ‘Act’ means the Companies Act 1956.
2. ‘Articles’ means the Articles of ABC Limited.
3. ‘Board’ means the Board of directors of ABC Limited.
4. ‘Company’ means ABC Limited. (The term ‘Company’
includes its successors and assigns, unless the use of this
word is contrary to the context or meaning given here).
5. “KRC” means Dr K R Chandratre.
Introduction:
1. The Company is a public company incorporated under the
Act and has its Registered Office at ….
2. KRC, … years old, is an Indian resident and currently resides
at ….
3. The Board appointed KRC as the Managing Director of the
Company by a resolution passed on ….
4. This Agreement sets out the terms governing KRC’s
appointment and functioning as the Company’s Managing
Director.
Terms:
1. This agreement will be effective from 1 July 2007.
2. KRC agrees to serve the Company as its Managing Director
for three years from ….
3. KRC will work under the superintendence, control and
direction of the Board.
4. KRC is entrusted with substantial powers of management
of the affairs of the Company except the powers which the
Act or the Articles require to be exercised by the Board.
5. Without restricting the general powers of management as
mentioned above, KRC may exercise the following powers
on behalf of the Company:
(a) …;
(b) …;
(c) ….
6. KRC may hold the office as Managing Director of the
Company for three years beginning from 1 July 2007.
However the Board may extend the term of his office.
7. The Company or KRC may bring this Agreement to an
end before its term is over by giving a notice of the intention
to terminate it at least 3 months before the date on which
the termination is to come into effect. If such notice is given,
the Agreement will come to an end when the 3 month
notice period is over.
8. KRC must devote adequate time and attention to the
Company’s business.
9. KRC must always comply with the directions given and
regulations made by the Board and he will faithfully serve
the Company and use his best endeavours to promote its
interests.
10. For the services provided, the Company will pay KRC the
following remuneration:
(A) Salary: Rs. … (Rupees …) a month;
(B) Perquisites: In addition to the salary, KRC will be
entitled to the following perquisites:
(C) Commission: Commission will be decided by the
Board based on the net profits of the Company.
The total remuneration of KRC will not exceed …% of the
net profits of the Company for any financial year.
Drafting Agreements in Plain English
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11. Subject to the provisions of the Act, KRC will not retire as
director by rotation till he continues to hold office of the
Managing Director.
12. His office of the managing director will come to an end if
he ceases to hold office of director for any reason.
13. While he holds the office of Managing Director or at any
time thereafter, KRC will not reveal to any person, or use
for his own or somebody else’s benefit, any confidential
information concerning Company’s business or affairs or
any trade secrets or processes of the Company and also use
his best endeavours to prevent any other person from doing
so.
14. KRC will not engage himself in any business which will
directly compete with the business of the Company while
he holds the office of the Managing Director or at any time
thereafter for 5(five) years.
Signing and Sealing:
This Agreement is signed by the Company and KRC on 15 June
2007
For ABC Limited
….
Chairman Dr K R Chandratre
The Common Seal of the Company is affixed to this Agreement
in accordance with the resolution of the Board passed at its
meeting held on … in the presence of Mr …, Director and Mr …,
Company Secretary.
Sample Power of Attorney in Plain English
Title: Power of Attorney
Date of execution: …
Name of Attorney: Mr …, Managing Director, aged …, son of …,
residing at ….
Number & Date of Board resolution: …
1. This Power of Attorney (‘POA’) has been executed by ABC
Private Limited (‘ABC’), a Company incorporated under
the Companies Act 1956, (‘the Act’) in favour of Mr XYZ,
Managing Director of ABC (‘XYZ’).
2. ABC carries on the business of software development and
export, etc. and it has appointed XYZ as its Managing
Director. By this POA, ABC gives XYZ the powers specified
below to be exercised by XYZ for and in connection with
ABC’s business :
(1) To carry on the business of ABC and manage its affairs
generally as its agent and to do every thing that is
necessary, required or appropriate to carry on the
business.
(2) To endorse, negotiate, discharge and deliver bills of
exchange (inland or foreign), hundis, pay orders or
other negotiable instruments or documents
evidencing possession of or title to goods or any
movable property of any kind.
(3) To make any payment properly falling to be paid by
ABC in the course of its business.
(4) To raise, sign and issue invoices, bills, debit notes,
cash memos, receipts and any other similar documents
or any forms, declarations and other documents in
connection with money owed or receivable for goods
and services sold, supplied or provided, whether on
cash or credit, by ABC.
(5) To recover money, claims and other debts owed by
the debtors of ABC and to take appropriate measures,
including legal actions, for the recovery of money
owed by any person to ABC.
(6) Subject to the conditions laid down by the Board of
directors of ABC from time to time, to make loans to
employees of ABC.
(7) To engage persons in the employment or on contract
basis and to engage persons as consultants or advisors
of ABC and to suspend and award punishment or
dismiss or otherwise terminate the employment or
contracts, with or without notice, of any such persons
and from time to time to transfer and retransfer any
person employed in the service of ABC to any place
from where ABC carries on its business.
(8) To employ, engage, retain, consult, pay and to
terminate the engagement of brokers, notaries,
architects, surveyors, valuers, clearing and forwarding
agents and all such persons and agents whose services
may be necessary for the business or affairs of ABC.
(9) To appoint, engage and instruct lawyers, advocates,
attorneys, solicitors, chartered accountants, company
secretaries, income tax and other consultants and to
authorize them to represent the company in any
proceedings in courts, quasi-judicial bodies and other
authorities, including any tax or revenue authorities.
(10) To insure any property, movable or immovable, of
ABC or in which ABC is interested.
(11) To join with any other party as a party to any action,
suit, petition or other legal proceeding whether as
plaintiff or defendant or appellant or respondent and
to interplead, claim set-off or make a counter-claim
and to issue or cause to be issued third party notices.
(12) To delegate any person any of the powers given by
this POA.
3. No person/persons dealing with XYZ is concerned to see
or enquire whether or not XYZ is acting in accordance with
the Company’s directions if in those matters he is required
to act subject to such directions.
4. Despite any breach of such directions committed by XYZ in
regard to any act, deed, matter or thing authorised by this
POA to be done or executed, then it will, between ABC and
the person or persons dealing with XYZ, be valid and binding
on ABC to all intents and purposes unless the person or
persons dealing with XYZ has notice of such directions;
Signing and Sealing:
This POA is signed by …, Chairman, ABC on … who affixed the
Common Seal of ABC as authorised by the Board of directors of
ABC by its resolution passed at its meeting held on … in terms of
Article … of the Articles of Association of ABC. �
Drafting Agreements in Plain English