Any document you draft—from an email to a settlement agreement—should be written in plain, understandable language. But many attorneys still fall into the trap of using stilted, legalistic language, particularly in contracts and other transactional documents. Compare the following purchase agreement recitals and see what a difference plain English makes.
In setting out the parties before the recitals, agreements often use a wordy boilerplate like this:
This PURCHASE AGREEMENT (hereinafter referred to as the “Agreement”) made as of this first day of January, 2018, is by and between XYZ CORPORATION, a corporation formed and existing under the laws of the State of California and having its principal office at 123 Middle Street, Center City, California, as seller (hereinafter referred to as “Seller”), and ABC INCORPORATED, a corporation formed and existing under the laws of the State of California and having its principal office at 789 Lower Avenue, Uptown, California, as buyer (hereinafter referred to as “Buyer”).
But all that’s generally necessary is something like this:
This PURCHASE AGREEMENT (this “Agreement”), dated as of January 1, 2018, is between XYZ CORPORATION, a California corporation, as seller (“Seller”), and ABC INCORPORATED, a California corporation, as buyer (“Buyer”).
And if we could all agree to ban the word “whereas” and tighten or eliminate unnecessary phrases, our drafting would be much easier to read. Consider this quagmire:
WHEREAS, Seller is the owner of all of the equipment, machinery, and other personal property more particularly described in Exhibit A hereto and incorporated herein by this reference (collectively referred to herein as the “Equipment”); and
WHEREAS, Seller is willing to sell the Equipment to Buyer upon the terms and conditions and for the consideration hereinafter set forth in this Agreement; and
WHEREAS, Buyer wishes to purchase the Equipment from Seller for the consideration set forth herein and subject to the other terms and conditions hereinafter included in this Agreement.
NOW, THEREFORE, in consideration of the premises, of the mutual covenants herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
See how much clearer this is without the gratuitous legalese and phrasing?
A. Seller owns the equipment and other personal property described in Exhibit A to this Agreement (collectively, the “Equipment”).
B. Seller is willing to sell the Equipment to Buyer on the terms and for the consideration stated in this Agreement.
C. Buyer wishes to purchase the Equipment from Seller for the consideration and on the other terms stated in this Agreement.
The parties therefore agree as follows:
Despite what you may have been taught in law school or through sample documents handed down to you, effective agreements are written in language the parties can read and understand. Keep this example in mind the next time you’re drafting and be sure to edit out any legalese and wordiness to make the document as clear as possible.
Get more practical guidance on drafting contracts, including many sample provisions, in CEB’s Drafting Business Contracts: Principles, Techniques and Forms. And for more than 70 practical writing tips, make sure to view CEB’s program Smith and McGinty on Legal Writing, available On Demand.
Check out these other CEBblog™ posts on legal writing.
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