Commercial practice - Introduction to drafting

Question 1

Are writing and drafting the same thing? (1)

Answer 1

No.

Question 2

What is legal writing? (1)

Answer 2

Communicating information or advice, usually in a letter to a client or professional, report or memorandum presenting the results of legal research.

Question 3

What is drafting? (1)

Answer 3

Preparation of formal legal documents which, once executed, are intended to create legal relations between two or more parties.

Question 4

What should your document address when drafting?

Answer 4

1. Give effect to the client’s objectives and instructions.
2. Contain all relevant information and facts.
3. Accurately address all relevant legal issues.
4. Protect the client’s interests and objectives.
5. Consider the 6 W’s.

Question 5

What are the 6W’s? (6)

Answer 5

Who is to perform the obligation? What is the obligation to be performed? When is the obligation to be performed? Where is the obligation to be performed? To whom is the obligation to be performed? What if - the consequences of failure to perform an obligation?

Question 6

What is a contract underhand? (1)

Answer 6

A agreement which is not intended to take effect as a deed.

Question 7

What is a deed? (1)

Answer 7

An agreement requiring additional execution formality beyond a simple signature.

Question 8

When will a contract take form as a deed rather than an underhand agreement? (3)

Answer 8

1. The documents is required to be executed as a deed - mortgages, grant POA.
2. It is desirable to have a limitation period for action arising of the contract of twelve years (deed) rather than six years (agreement underhand.
3. It is questionable whether valuable consideration is being provided by a party to the document.

Question 9

If a deed, does valuable consideration need to be given for the document to be binding? (1)

Answer 9

No.

Question 10

What should precedents do in documents? (3)

Answer 10

1. Only act as a reminder of provisions commonly found in a transaction of a particular type.
2. Servants not masters - should not substitute original though and analysis.
3. Understand the function and purpose of each clause in a precedent document,

Question 11

How can you use precedents effectively in documents? (5)

Answer 11

1. Select the best and most up to date precedents.
2. Ensure no inconsistencies in wording / definitions if using more than one precedent.
3. Don’t leave particulars to the previous deal in the draft is using precedent from previous deal.
4. Fill in any blanks.
5. Don’t re-draft for the sake of it when a precedent fits the transaction.

Question 12

How do we deal with two or more unconnected ideas which relate to the same subject? (1)

Answer 12

Sub-clauses.

Question 13

What is tabulation and how do we use it? (2)

Answer 13

Clauses consisting of more than one sentence are divided into sub-clauses, we should adhere to a consistent numbering system (1.1, 1.2, 1.2), the alphanumeric system is the conventional system.

Question 14

How should definitions be used? (1)

Answer 14

In alphabetical order and start with a capital letter.

Question 15

What is elegant variation and why should we avoid it? (1)

Answer 15

Use of different words that mean the same thing.

Question 16

What voice should the documents be written in? (1)

Answer 16

Active voice so the doer appears in front of the verb.

Question 17

What are the five important rules in regard to how courts interpret documents? (5)

Answer 17

1. According to their ordinary and natural meaning unless context requires otherwise.
2. Implied terms.
3. Conditions and warranties.
4. Rules of construction.
5. Rules of interpretation applied by statute, month means calendar month.

Question 18

What does noscitur a sociis mean? (1)

Answer 18

It is known from its associates.

Question 19

What does expressio unius est exclusio alterius mean? (1)

Answer 19

The express mention of one thing implies the exclusion of another.

Question 20

What does contra proferentem mean? (1)

Answer 20

Against the one putting forward