The Structure Of An English Language Contract Flashcards
Lawyers often being a contract by giving some background information. This introductory paragraph known as a … or the … in English, also may help make clear the parties intentions or to resolve problems of interpretation
Preamble
Recitals
Use the definition section to define
- Special trade terms ( used only in that business )
2. Complicated ideas ( rather than having to write them out each time in the contract )
The golden rule of drafting
Never change your language unless you wish to change the meaning, and always change you’re language if you wish to change your meaning
Standard language found in all contracts
Boilerplate
New language that dictates the relation between the parties in this specific contractual relationship
Operative language
A responsible contract reader must know
- The difference between operative language and boilerplate
- What each type of boilerplate looks like and how to identify it
- Why the boilerplate language is in the contract in the first place
The term boilerplate is often used to describe the all-purpose language that is found in every contract, often under the heading …
Miscellaneous
Standard boilerplate terms include all of the following:
1. Most parties do not want an entire contract to become void because a single clause is not enforceable under the law.
Severability clause
- Many times contracts involve lot of discussions, and thus lots of paper flying around!
Merger clause
- Also known as an act of gold clause, it protects both parties from being found in breach of contract due to factors beyond the parties personal control
Force majeure clause
- The parties are always free to modify the contract at a later date, but often times this causes major problems.
Modification and waiver clause
- The common law assumes that a party can give his responsibilities under a contract to a 3 rd party. If the parties do not want this to happen, they have to be sure to put a clause in the contract forbidding it
Assignment and delegation
- In international contracts, it is extremely important to determine whose legal systems is going to govern the contract
Choice law
- This clause dictates not what law will be used but what court will hear the case. This is know as jurisdiction
Choice of forum
Refers to the language that affects the legal relationship. The drafter must choose language with care
Operative language
Duties
Shall
Whatever word is used to express this in the contract, it should always be possible to replace the word with the phrase
Has an obligation to
In English language contracts you will often see all of the following used to create duties in contracts …
Will
Shall
Must
Often contracts written by non-native speaker or translated by translation firms use the word … as the Word to express duties
Will = it’s a weak word; it leads to great confusions as to whether the contract is referring to a duty or merely to the future
An English language contract is said to always be speaking, therefore, the … should be used, and other tenses avoided
Present tense
The best and most common word to show a duty is the word … because it is a term of command - and because … might be seen as simply referring to the future
Shall
Will
The weakness with the word shall is that …
It is often used in two different ways in a single document
- as a term of command
- as a substitute for is, should, must, is required to: the computer shall, the products shall, the contract shall
- good shall and bad shall = replace the word shall with the magic phrases: has an obligation to
Because shall is often misused and will does not sound very obligatory, some drafters use the word must ans must not
Must
The former works very well, but is considered to be both too simple and not strong enough, the latter is an bit too long
Agrees to/is obligated to
Duties to not act are created by the words …
Shall not, must not, will not or is not required to
Rights are usually created by using the words …
Is entitled or has the night to
Negativ Form : not entitled to
Gives the other party the idea of a two way street and a sense of empowerment
The use of right language gives the other party a sense of power
The word … is used to create privileges
May
A … differs from a right only in the sense that it does not have a direct duty-corollary
Privileg
… of a party means any entity that, directly or indirectly, controls, is controlled by or is under common control with, the party
Affiliate
… means customers acceptance of the product or service as demonstrated by customers signature of the first office application certificate which acknowledges the fulfilment by TCS of the obligations described in the statement of work , such as the delivery of a system
Completion criteria
Means requirement or machines, such as computers sold and/or maintained by TCS under this agreement. … may be manufactured by TCS or by third parties
Hardware
… mean hardware, software, or systems sold or licensed by TCS
Products
