Legal Drafting - general Flashcards
How to structure a clause
- circumstances/exceptions (i.e. circumstances where the right or obligation does or does not exist);
- conditions (i.e. conditions on which the right or obligation depends);
- obligation or right (i.e. who must do what or who may do what).
How to introduce circumstances
- ‘where…’
- ‘if…then’
- ‘when…’ or ‘on…’
How to introduce an exception
- ‘except where…’
- ‘save where…’
How to introduce conditions
- ‘if…’
- ‘provided that…’
How to use definitions
- At start of agreement
- To shorten long names
- “X means…”
- Define things like term / retained land
- If only being used in one clause, can put at start of clause e.g. “In this clause, [term] means…”
- Capitalise
Undistributed middle
E.g. ‘where Company delivers goods before 1 January…’
- What if they deliver ON 1 Jan - make clear
How to avoid ambiguity over and/or
- ‘The Seller may do all or any of the following:’
- ‘The Seller may exercise one only of the following rights:’
How to draft deadlines to make them clear
It is safer to be clear by using one of the following expressions:
* from but excluding/not including;
* from and including;
* on or after;
* on or before;
* within a period of 7 days commencing with;
* until but excluding/not including;
* until and including.
Obligation vs discretion
- Obligation - ‘The Customer shall pay…’
- Discretion - ‘The Company may retain…’
How to avoid similar sounding words
Avoid:
* mortgagee / mortgagor, instead use lender / borrower
* lessor / lessee, instead use landlord / tenant
How to avoid ejudsem generis rule
To avoid ambiguity, add (as appropriate):
* whether of the same kind as [the causes] previously listed or not
OR
* or any other [cause] provided it is of the same kind as the [causes] previously listed.
