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Contract drafting vs contract intelligibility

Published: 29 Apr 2019 Average Rating: 4 / 5 Print
 

Author: Tim Cummins

In his blog, 'Contract Drafting Wars', Mark Anderson has joined the debate over 'fit for purpose' contracts. It's an important discussion because contracts today permeate almost every corner of society - and for most people are unintelligible and exclusionary.

A battle – or difference of perspective?

Mark is perceiving that there is a battle going on between IACCM and Ken Adams (author of a Manual of Style) regarding contract drafting. With the greatest of respect, he misses the point. This is actually a debate about inclusiveness and intelligibility, about the fundamentals of purpose and design, of which drafting style is but a component.

Let's start with a few facts:

– approximately 4 out of every 5 people do not speak English

– approximately 1 in 6 people (and 1 in 4 women) are illiterate

– less than 0.001% of contracts are litigated; their primary purpose is not to facilitate legal disputes, but to frame an economic arrangement

– even when litigated, courts do not (as Mark suggests) depend solely on words. They have to interpret drawings (engineering and construction); maps (property); software code (IP); musical notes (copyright); designs (patents); video and even e-mojis (yes, there are legal experts in this too). The trend to alternative media is unstoppable.

The change is already happening

IACCM members – some of the world's biggest corporations – are recognising these forces and the importance of user-based design. They understand that the typical users of contracts are not courts and not lawyers. The first principle of good communication is not whether the transmitter believes it to be clear, but whether the receiver understands it. On this count, traditional contracts fail miserably and it is obvious that A Manual of Style cannot possibly on its own fix the problem.

The emerging world, with its expectations of greater inclusiveness and equality, is challenging for lawyers (and other established professions), yet also exciting. It demands new thinking and a readiness to test and, where appropriate, adopt fundamentally different approaches. Technology will be disruptive. Digitisation offers exciting possibilities. Computable contracts, smart contracts, video contracts, comic contracts – they are all emerging realities and at IACCM we welcome this opportunity to educate, to innovate, to make contracts living instruments, to end a world where they are too often a barrier to social inclusion and justice. In this ambition, we are joined by many lawyers and legal academics from around the world, anxious to lead institutional change and adapt legal practice to the realities of modern business and society.

Within this mix, does A Manual of Style have a place? Absolutely yes. That is why we have always been pleased to promote Ken's work. Where we disagree is not whether the Manual has value, but whether there is a much bigger need than simply standardising the words for English language contracts. As the facts above illustrate, A Manual of Style is a relatively small step on what is an enormous staircase to the future.

 
 
 

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