Solution: You start over, preserving whatever deal terms make sense but expressing them in clear and modern contract prose. And the scattered misconceptions incorporated in it leave the reader scratching their head and could conceivably result in a contract dispute. It takes 30% longer to read than it should. Boilerplate that’s bloated (the governing-law provision) or meaningless (a successors-and-assigns provision).Ĭost: The template is 2o% longer than it needs to be.Promiscuous use of strings of synonyms or near-synonyms, indemnify, defend, and hold harmless being just one example.Chaotic verb-structures, the most obvious feature being drastic overuse of shall.Use of all-capitals archaisms, including WHEREAS.Not by conviction, but simply because you don’t know that there’s an alternative. It wouldn’t cost much to fix it, assuming you enlist a contract-drafting specialist.Īpproach: You’re a traditionalist. And if you run a tight ship and want all your templates to be consistent and orderly, you fix it, no questions asked. But if you use the template often enough, the time and money saved from making it a bit clearer would start to add up. The giveaway is use of the word will.Ĭost: The template is 3% longer than it needs to be it takes 5% longer to read than it should and the scattered misconceptions incorporated in it could conceivably result in a contract dispute. Instead, it includes obligations and statements of future facts (in other words, more obligations). By itself, that’s a bad idea (as explained in this article), but a further problem is that what follows isn’t limited to statements of fact. Use of represents and warrants ostensibly to introduce statements of fact.And the reader is forced to flip back to the definition section each time they encounter a defined term with a non-obvious meaning. So the first thing the reader encounters is a bunch of boring stuff instead of what they really want, which is the deal terms. Enthusiastic use of defined terms, with most being defined in a definition section at the front of the body of the contract.In addition to the resulting muddling of language of obligation and language of policy, the template exhibits a range of verb-structure problems, including (1) stating as obligations what should be conditions, (2) use of buried-actor policies, including the structure will be payable, and (3) use of may to mean “might” in restrictive relative clauses. Use of will throughout instead of shall, assuming that fixes verb-structure problems.But you don’t follow a comprehensive set of guidelines, so to some extent you improvise and rely on conventional wisdom. With your indulgence, I’ll do just three.Īpproach: You pride yourself on using modern contract language. It increases in severity from DEFCON 5 (least severe) to DEFCON 1 (most severe). armed forces. It prescribes five graduated levels of readiness (or states of alert) for the U.S. So I’ve co-opted the “defense readiness condition,” or “ DEFCON,” alert state used by the U.S. I figured that rather than just speaking generally about dysfunctional contract templates, it might be helpful if I give you a sense of the different kinds of dysfunction I see.
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