Plain English in Contract Recitals and
By George H. Hathaway
The Michigan Institute of Continuing Legal Education has recently published an excellent book, Michigan Contract Law, edited by John Trentacosta. The book discusses the substantive law of contracts in Michigan in a clear, easy-to-read style. Chapter 16, "Drafting Contracts," discusses clear writing in recitals and boilerplate.
Recitals (from Section 16.19):
"Traditionally, recitals start with a 'Whereas.' However, the trend toward the use of plain English has led many drafters to delete this archaic word and simply use a heading called 'Recitals' or an introductory statement, such as: 'This contract is made with reference to the following facts."'
Boilerplate (from Section 16.37):
"The peripheral or 'general' clauses that are found near the end of an agreement are often referred to as 'boilerplate' clauses. Unfortunately, these clauses are often given little thought. The drafter should not blindly include the 'standard boilerplate' without considering whether each clause helps or hurts the client's position."
Most boilerplate clauses are so intimidating that few practitioners have time to simplify them. Most practitioners simply copy existing boilerplate and justify the wordiness on the basis of complexity and case precedent. However, everything changes once someone does all the hard work in organizing, clarifying, and publishing boilerplate clauses so that they are easy to analyze. Critics then step in like auditors who come in after the battle is over and kill all the wounded. To illustrate, I reprint the 21 boilerplate clauses published in Michigan Contract Law with my edited versions. Of course, my versions then become fair game for all others to further critique.
"Plain Language" is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the State Bar's Plain English Committee. The assistant editor is George Hathaway, chair of the Committee. The Committee seeks to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website. George Hathaway is a senior real estate attorney at the Detroit Edison Company and chair of the Plain English Committee of the State Bar of Michigan.