General Legal Drafting Principles Flashcards
What are the 8 most common clauses in legal documents
- Commencement
* This states what the document is — e.g. “This Agreement” or “This Deed of Conveyance”. It sets the context and makes clear what kind of legal instrument is being used. - Date
* This indicates when the document is executed or becomes effective. It’s usually left blank until completion. In deeds, dating affects enforceability and limitation periods. - Parties
* Lists the full names and addresses of the parties. For companies, this includes the registered office. This defines who the parties to the contract are, ensuring clarity and enforceability. - Recitals
* Background statements (e.g. “Whereas…”) explaining why the document is being entered into. They can aid interpretation but aren’t usually operative. Use with caution to avoid ambiguity. - Operative Part
* This is the heart of the document — it creates the legal rights and obligations. It often includes:
* Conditions precedent (conditions to be met before the agreement takes effect)
* Agreements (substantive obligations of the parties)
* Representations and warranties (binding factual/legal statements)
* Boilerplate clauses (standard terms like notices, governing law, etc.) - Testimonium
* A non-essential clause introducing the execution section. It can describe how a document is to be signed, especially if executed as a deed or under seal. - Schedules
* Schedules hold detailed supporting material (e.g. rent schedules, covenant details) to avoid cluttering the main text. The operative part should refer to them directly. - Execution and Attestation
* The signing section that gives the document legal effect. The form varies by party type and whether it’s a deed. May include attestation for witnessing signatures.
Structuring the Operative Part – Chronological Order (9)
Use chronological structure for simple linear transactions that follow a clear sequence of events e.g., short term services contract, supply agreements, event hire
Suggested clause order for a simple agreement:
1. Parties
2. Definitions
3. Description of the service or transaction being agreed
4. Payment provisions
5. Pre-performance obligations (e.g. preparation, delivery terms)
6. Duration of the agreement
7. Performance terms or restrictions on use
**8. End-of-contract obligations **(e.g. return of goods, post-completion steps)
9. Remedies for breach
Structuring the Operative Part – Categorical Order (7)
Use categorical structure for ongoing or complex agreements where obligations are continuous e.g., leases, exmployment contracts, partnership agreements
Suggested clause order for a categorically structured agreement:
1. Parties
2. Definitions
3. Statement of relationship or appointment
* e.g. grant of lease, employment start date, partnership formation
4. Obligations of the first party
* e.g. tenant’s covenants, employee’s duties, partner’s capital contribution
5. Obligations of the second party
* e.g. landlord’s covenants, employer’s duties, other partners’ responsibilities
6. Common terms and mutual obligations
* Leases: service charge contributions, repair responsibilities shared by landlord and tenant
- Employment contracts: confidentiality, IP ownership, restrictive covenants
- Partnership agreements: profit-sharing ratios, dispute resolution, joint decision-making procedures
7. Provisions for enforcement or remedies
* e.g. forfeiture of lease, dismissal procedures, expulsion or dissolution provisions
What are best practices for structuring clauses and sub-clauses in the operative part of a legal document?
- Use a separate clause for each distinct point. Avoid bundling different obligations into a single clause.
- Use sub-clauses or bullet points for detail, rather than cramming long provisos into one paragraph.
- Always number clauses and sub-clauses clearly to aid navigation and cross-reference.
- Add a heading for each clause/group that reflects its subject (e.g. “Tenant’s Covenants”).
- Keep language precise, plain, and unambiguous. Avoid legalese where possible.
- Break down complex ideas — e.g., compare:
“All materials must be sourced exclusively… unless three months’ notice is given.”
With:
- “The Licensee must purchase all materials exclusively from the Grantor.”
- “The Licensee may terminate this obligation by giving three months’ written notice.”
Universal Structure for Drafting (7)
1. Title / Heading
- Set out what the document is, clear, specific (e.g., “Particulars of Claim”, “Board Minutes”, “Contract for Sale”).
2. Parties
- Full names of parties (Claimant/Defendant, Buyer/Seller, Borrower/Lender, etc.).
- State their roles clearly at the start.
3. Purpose of Document / Background / Introduction / Commencement
- Briefly set the scene.
- State the purpose of the document (e.g., “This contract sets out the terms agreed between X and Y regarding the sale of…”).
4. Main Terms / Key Points
- Use numbered paragraphs if possible.
- Each paragraph = one clear point (e.g., “1. Payment Terms”, “2. Delivery Date”).
- Keep clauses short, clear, professional.
5. Specific Obligations / Requests
- Spell out what each party must do.
- Include dates, timescales, amounts, clear obligations (NO vagueness).
6. Conclusion / Final Provisions
- Summarise effect (“This agreement is binding upon signature by both parties.”).
- Include boilerplate if needed (e.g., governing law, whole agreement, notices).
- Governing Law and Jurisdiction
→ “This agreement is governed by the law of England and Wales.” - Entire Agreement Clause
→ “This document contains the whole agreement between the parties.”
7. Signatures / Endings
- Signature blocks if required (“Signed by [Party Name]…”).
- Date the document.
Universal Style Rules
- Simple sentences. (e.g., “The Buyer shall pay £10,000 within 14 days.”)
- No slang. Professional but straightforward tone.
- Short paragraphs (ideally 3–5 lines max).
- Logical order. Flow from introduction → obligations → conclusion.
When drafting full clauses what are 6 things you need to take into consideration to make sure, the clause is drafted clearly?
- WHAT is the obligation to be performed?
- WHO - Which party needs to or is going to perform the obligation?
- WHOM – For whose benefit is the obligation being performed? So, for example, is it the buyer or the seller? Who has the right to decide if the obligation has been performed correctly i.e. to whose standard will the performance be judged?
- **WHEN **– What are the timing requirements / when should the obligation be performed by? In other words what is the cut off, or long stop date?
- WHERE exactly is the obligation to be performed? For example, is there a specific part of the Property where the obligation needs to be performed?
- WHAT HAPPENS if the obligation is not performed “correctly”?
How should you draft an execution clause?
Executed as a deed by (name of company) acting by [a director and its secretary] [two directors]
Signature of Director:___________________
Signature of [Secretary][Director]:________________
and/or
Executed as a deed by (name of Company) acting by a director
In the presence of:
Signature of Director:___________________
Signature of witness:________________
Name (in BLOCK CAPITALS):________________
Address:_________________________
How to draft a statement of truth
Signed by claimant:
I believe that the facts stated in this [name of the document] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Signed by solicitor:
The claimant or as may be believes that the facts stated in this [name of the document] are true. [The claimant or as may be understands] that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
