In Pursuit of Clarity: The Art of Re-Drafting

Upon receiving an initial draft of a contract, many practitioners are requested to amend certain provisions and make changes to the document. The ultimate goal of any re-drafting attempt should be a clearer, more concise document which leaves little (or ideally, no) room for interpretation. In considering how a clause should be structured, the following tips may be helpful:

1. Refer to any exceptions first. For example, the section should begin with “Subject to …” or “Except in the case of”.
2. Set out the circumstances or conditions upon which the legal right or obligation depends, using the present tense.  For example, “If x does (…) and y does (…).”
3. Set out the right or obligation using the active and avoiding the passive voice.  For example, “X shall do 1 to 5” rather than “1 to 5 shall be performed by X”.
4. Where possible, divide a lengthy clause into smaller paragraphs — using (i), (ii) … or (a), (b) … — and give it a heading.

As an example, below is a clause which requires re-drafting.

It is the duty of the Company to reimburse the Buyer for any defective products if the value of the products is less than £1,000, provided always that the above shall not apply to such products as defined in Section 3 of this Agreement. It is the duty of the Buyer to provide notification of any defective products within five days of receiving the products from the Company, otherwise the Company also does not have to reimburse the Buyer.

In order to make it more concise and easier to understand, the above clause could be re-drafted as follows:

Buyer’s Right to Reimbursement

Except in the case of products as defined in Section 3 of this Agreement, where:

1. the value of the products does not exceed £1,000; and
2. the Buyer notifies the Company of the defective products within five (5) days from receipt of the products,

the Company shall reimburse the Buyer for any defective products.