Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Plain English Committee of the Bar
Journal Advisory Board. The assistant editor is George Hathaway.
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—http://www.michbar.org/generalinfo/plainenglish/home.cfm.
Rid of Olde-Worlde Archaisms
often than not, recitals—the part of a contract that follows the introductory
clause and precedes the body of the contract—are given the heading WITNESSETH.
While drafters presumably use WITNESSETH because it has a picturesque
oyez-oyez quality to it, it is not only archaic, but also inane: WITNESSETH
is not a command in the imperative mood, but rather a third-person
singular verb and the remnant of a longer phrase, such as This document
common archaisms are the WHEREAS that precedes most recitals, the
NOW, THEREFORE often used at the beginning of the final recital
(known as the lead-in) and the IN WITNESS WHEREOF often used at
the beginning of the concluding clause, just before the signatures. And
by expressing dates as this 22nd day of May, 2002, rather than
May 22, 2002, drafters often use six words where three will do.
I could go on. You should omit all such archaisms: they are a distraction,
convey no meaning, and indicate that the drafter is an utter slave to
Shall on a Short Leash*
or sentence in the body of a contract can serve one of a number of purposes,
each requiring its own category of language. Drafters blur the distinctions
between these categories.
principal culprit in this regard is shall. Shall has a tortured
history that gave rise to exception-ridden rules about when shall conveys
simple futurity and when it conveys compulsion. Shall has been
all but discarded in general usage and many plain-language commentators
would do away with it, but I use shall when drafting contracts,
partly because I find it superior to the alternatives.
usage requires that shall be used only to impose a duty on the
subject of a sentence; in other words, you should only use shall to
mean ‘‘has a duty to,’’ as in the sentence Widgetco shall purchase
the Shares from Jones. But lawyers use shall in all sorts of
other ways, thereby violating the basic drafting tenet that you should
not use any given word or term in more than one sense. Below is a selection
of representative contract provisions that use shall inappropriately.
The Closing shall take place [read The parties shall hold the Closing]
at Acme’s offices.
• Jones shall receive [read Widgetco shall pay Jones] an
annual salary in the amount of $100,000.
• This agreement shall be [read is] governed by New York
• ‘‘Securities Act’’ shall mean [read means] the Securities
Act of 1933, as amended.
• Jones shall pay the Purchase Price by wire transfer to any account Acme
shall specify [read specifies] in writing.
• If Doe shall transfer [read transfers] the Shares without
Acme’s prior written consent, that transfer shall [read will]
explains this rampant overuse of shall? Perhaps drafters mistakenly
think that you should use the future tense liberally, since a contract
is meant to govern future conduct, and then out of familiarity they use
shall rather than will. Or perhaps drafters feel that contract
language will somehow not be legally binding if there isn’t a shall
in there somewhere.
of shall might not seem like much of an issue, since any one instance
of misuse is unlikely to result in confusion. But it does serve to muddy
the meaning of shall; there is a pile of litigation on the subject.
More generally, inappropriate use of shall indicates a lack of
control over meaning; instead of mastering the issues of grammar raised
by any given category of contract language, it is far easier to simply
use shall everywhere, even if doing so washes out the contrasts
that help convey meaning.
Most Contexts, Don’t Use Both Numerals and Words to Convey Numbers
probably use both words and numerals to convey numbers: forty (40)
days; Ten Thousand Four Hundred Twenty-Two Dollars and 46/100 ($10,422.46);
five percent (5%); and so forth. This practice presumably arose because
drafters valued the conciseness of numerals yet recognized that they are
more vulnerable to typographic errors than words, and so decided that
using both afforded the immediacy of numerals while providing insurance
against a potentially drastic mistake.
words-and-numerals approach has no doubt saved the occasional contracting
party (and its lawyer) from the adverse consequences of a misplaced decimal
point or other error involving numerals. But this benefit is analogous
to the protection afforded by wearing a crash helmet 24 hours a day: doing
so might save your life on the off chance that you are struck by a falling
brick, but it is very inconvenient and makes you look a little ridiculous.
In most contexts, such as in a provision stating that a party is entitled
to appoint ‘‘three (3) members of the board of directors,’’ no useful
purpose is served by the belt-and-suspenders approach.
told, you should abandon the words-and-numerals approach, except perhaps
in certain potentially sensitive contexts (such as a promissory note’s
statement of the principal amount of the indebtedness). Instead, spell
out whole numbers one through ten and use numerals for 11 onwards. This
approach applies to ordinal numbers (e.g., fifth, 18th) as well
as cardinal numbers. I use numerals for whole numbers below 11 in lists
of numbers; when numbers occur often in the text; in percentages; and
in amounts of money or times of the day. At the beginning of sentences,
I of course use words for numbers 11 and over. Which system you adopt
is less important than ensuring that you do not distract the reader by
rules reflect just a few of the principles underlying modern and efficient
contract prose. What does it mean if you elect not to follow them? A number
you think that contracts are impenetrable because, hey, the law is inherently
complex. Or that verbose and archaic language is the price you pay for
precision. Or that case law has settled the meaning of much legal vocabulary,
leaving the drafter with little discretion. If you believe any of these
myths, then you are on the losing side of a battle that was waged in recent
decades in legal-writing circles.
you acknowledge that these rules result in more efficient contracts, but
think there’s something a little touchy-feely in worrying about whether
your contracts are as intelligible as they might be. Perhaps many corporate
lawyers secretly share this Bleak House perspective, but it’s probably
not one that the governing bodies of the legal profession would encourage.
you don’t want to bring attention to yourself by abandoning the traditional
formulations. In this regard, bear in mind that many of the changes I
recommend would go unnoticed. If a client expresses skepticism or—especially
relevant—a partner volunteers that ‘‘we don’t draft contracts like that
around here,’’ you can explain why you made the change, but don’t hesitate
to beat a hasty retreat: the battle for sensible contract prose will be
a long one, so nothing is gained by taking early casualties.
commentators would choke it to death. See the November 2000 column. —JK