The Structure Of An English Language Contract

Question 1

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

Answer 1

Preamble

Recitals

Question 2

Use the definition section to define

Answer 2

1. Special trade terms ( used only in that business )

2. Complicated ideas ( rather than having to write them out each time in the contract )

Question 3

The golden rule of drafting

Answer 3

Never change your language unless you wish to change the meaning, and always change you’re language if you wish to change your meaning

Question 4

Standard language found in all contracts

Answer 4

Boilerplate

Question 5

New language that dictates the relation between the parties in this specific contractual relationship

Answer 5

Operative language

Question 6

A responsible contract reader must know

Answer 6

1. The difference between operative language and boilerplate
2. What each type of boilerplate looks like and how to identify it
3. Why the boilerplate language is in the contract in the first place

Question 7

The term boilerplate is often used to describe the all-purpose language that is found in every contract, often under the heading …

Answer 7

Miscellaneous

Question 8

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.

Answer 8

Severability clause

Question 9

2. Many times contracts involve lot of discussions, and thus lots of paper flying around!

Answer 9

Merger clause

Question 10

3. 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

Answer 10

Force majeure clause

Question 11

4. The parties are always free to modify the contract at a later date, but often times this causes major problems.

Answer 11

Modification and waiver clause

Question 12

5. 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

Answer 12

Assignment and delegation

Question 13

6. In international contracts, it is extremely important to determine whose legal systems is going to govern the contract

Answer 13

Choice law

Question 14

7. This clause dictates not what law will be used but what court will hear the case. This is know as jurisdiction

Answer 14

Choice of forum

Question 15

Refers to the language that affects the legal relationship. The drafter must choose language with care

Answer 15

Operative language

Question 16

Duties

Answer 16

Shall

Question 17

Whatever word is used to express this in the contract, it should always be possible to replace the word with the phrase

Answer 17

Has an obligation to

Question 18

In English language contracts you will often see all of the following used to create duties in contracts …

Answer 18

Will
Shall
Must

Question 19

Often contracts written by non-native speaker or translated by translation firms use the word … as the Word to express duties

Answer 19

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

Question 20

An English language contract is said to always be speaking, therefore, the … should be used, and other tenses avoided

Answer 20

Present tense

Question 21

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

Answer 21

Shall

Will

Question 22

The weakness with the word shall is that …

Answer 22

It is often used in two different ways in a single document

1. as a term of command
2. as a substitute for is, should, must, is required to: the computer shall, the products shall, the contract shall
3. good shall and bad shall = replace the word shall with the magic phrases: has an obligation to

Question 23

Because shall is often misused and will does not sound very obligatory, some drafters use the word must ans must not

Answer 23

Must

Question 24

The former works very well, but is considered to be both too simple and not strong enough, the latter is an bit too long

Answer 24

Agrees to/is obligated to

Question 25

Duties to not act are created by the words …

Answer 25

Shall not, must not, will not or is not required to

Question 26

Rights are usually created by using the words …

Answer 26

Is entitled or has the night to

Negativ Form : not entitled to

Question 27

Gives the other party the idea of a two way street and a sense of empowerment

Answer 27

The use of right language gives the other party a sense of power

Question 28

The word … is used to create privileges

Answer 28

May

Question 29

A … differs from a right only in the sense that it does not have a direct duty-corollary

Answer 29

Privileg

Question 30

… of a party means any entity that, directly or indirectly, controls, is controlled by or is under common control with, the party

Answer 30

Affiliate

Question 31

… 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

Answer 31

Completion criteria

Question 32

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

Answer 32

Hardware

Question 33

… mean hardware, software, or systems sold or licensed by TCS

Answer 33

Products