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Announcement: My upcoming book: I’m working on an encyclopedic dictionary of contract clauses, for drafters, reviewers, and students. The book is built on a much-expanded version of the Common Draft clauses; it has links to specimens of real-world clauses found in contracts by companies you undoubtedly know; and it has lots of analysis and commentary. If you’d like to be notified and get a free sample chapter by email when I finish, send your email address to me at dc@toedt.com. Don’t worry, I won’t spam you or sell your email address.

Brevity in contracts isn’t always the supreme virtue

Brevity in a contract is certainly an important virtue. But it’s far from the only one. Sometimes a few words of explanation or clarification can be cheap insurance.

For starters: Every decision-maker who reads a contract has his or her own values, biases, intelligence, education, experience, etc. It’s impossible to know in advance what those might be for a particular executive, judge, juror, etc. In persuading that individual to see things the way you want, a bit of extra language might make all the difference.

Plus, the future’s often cloudy. It can be hard to know what difficulties the parties might encounter down the road. A less-terse contract might make it easier for the parties to collaborate effectively in dealing with unanticipated problems.

(Of course, many contracts are too long because their drafters didn’t or couldn’t take the time to be more concise, but there’s usually a happy medium.)

Comments on this entry are closed.

  • Tom Bowden October 20, 2011, 10:09 am

    DC – What is your opinion on the now nearly ubiquitous language “For the avoidance of doubt…..”? I was taught to say things once, and say it right the first time, rather than restate the same concept in a different way. This is a recipe for ambiguity in my opinion. On the other hand I do agree with using formulas and calculations to demonstrate precisely what is intended.

  • D. C. Toedt October 20, 2011, 12:14 pm

    Tom, I use “For the avoidance of doubt” quite a bit. Mainly it’s to try to nip in the bud any attempt by the other side’s trial counsel to argue a different implied meaning of the preceding term.

    Here are two examples, from a services agreement form I recently did for a client:

    (4) For the avoidance of doubt, each Statement of Work will be construed as requiring Provider to perform all individual tasks necessary for the proper rendering of the relevant services, even if one or more such individual tasks is not expressly stated there.

    (5) For the avoidance of doubt, Provider is under no obligation to provide services not described in a Statement of Work unless the parties have expressly agreed otherwise in writing.