A contract may be deemed unenforceable if it is so poorly drafted that it’s essentially unreadable. And, let’s face it, many contracts are not reader-friendly.
If you’ve ever read a contract provision containing a single sentence with hundreds of words, multiple nested lists and unintelligible punctuation, you know what I mean. This article offers several tips for making contracts more readable for the reader, which should be the drafter’s primary goal.
As you read this article, consider the condition of your contracts and what changes you might make.
Use plain language
Many contracts today still use legalese, archaic language that should have been updated years ago. Legalese may be acceptable in contracts written to be read by attorneys, but not for contracts to be read by non-lawyers.
Instead, contracts should be written using plain language so there is no ambiguity and so the reader can actually understand the contract. Plain language drafting encompasses word choices, structure and design, with the goal of creating precise, clear, readable contracts.
Organize information
Contracts often contain clauses listed in random order. While the drafter may have successfully included the necessary clauses, they are disorganized, and the reader is left bewildered. Instead, similar clauses should be grouped into sections with clear headers.
For example, in an asset purchase agreement, a section for “Seller’s Representations” is where a reader would find all of the pertinent representations made by the seller. This simple concept is very helpful to the reader.
Make it visually readable
Contracts are often very wordy and lack white space, which is the extra space between lines. By adding some white space, the reader’s eyes are given a break. Even minimal line spacing changes make a big difference.
Also, contracts are often formatted using the “full” justify feature, which stretches out each sentence across the page, leaving a clean edge on both sides of the page. This can strain the reader unnecessarily, so contracts should be “left justified” so that the reader no longer has to struggle with inconsistent spacing.
Use “shall” appropriately
The word “shall” is often misused, creating ambiguity. Courts have held that “shall” could mean “must” or “may.” While the drafter most likely intended “shall” to mean “must,” the misuse allows the meaning to be interpreted as “may.” For these reasons, many attorneys no longer use “shall” in their contracts. The rule is that the word “shall” is only to be used in place of “has a duty to.”
Use punctuation properly
Missing or misapplied punctuation can completely change the meaning of a sentence. The classic example of “let’s eat grandpa” says it all. And an Oxford comma should always be used regardless of what your high school English teacher taught you.
Contract clauses containing lists or series of lists embedded in long, complicated sentences are often difficult to decipher. These clauses may be better drafted with bullet points or vertical lists so the reader has a shot at understanding what they mean.
Page numbers and numbering
Every contract should contain the total number of pages and the page number (X of Y pages). Contract pages are often separated and reassembled. The reader should be able to quickly know if a page is missing or out of order.
And within the contract, many still use confusing numbering systems, which may become difficult to follow in a large, complex contract. A more reader-friendly numbering system is to use Arabic numbers to denote section numbers. By using this system, the reader always knows where they are in the contract.
The bottom line
We deal with contracts every day. They should be readable and enforceable. What is the condition of your contracts, and what changes can you make?
Now go forth.
