Better contracts mean better relationships

A well drafted contract is like a good fence between neighbors: it clearly establishes the borders and extent of responsibilities, and it strengthens the relationship between the parties.  It can’t replace a bad relationship, but it can help facilitate a good one.

I look at  and work on a lot of contracts where I work, and I am learning a lot about drafting, negotiating the language, and striking the balance between the parties in the contract.  One of my favorite places to turn for good advice in doing this is Adams Drafting, a blog dedicated to better contract drafting.  Ken Adams does a great job of providing relevant examples of contract language ought to be improved, and he explains in clear English how to he recommends it be done.  An example:

Today I saw the following in a contract I pulled from the SEC’s EDGAR system:

SunPower hereby guarantees that, subject to Section 22, it shall supply and deliver each of the Products to the delivery point specified in a given Purchase Order (each, a Delivery Point ) on or prior to the scheduled delivery date therefor specified in such Purchase Order (with respect to such Products and such Delivery Point, a Guaranteed Delivery Date ).

When in the MSCD-approved manner you’re using shall to impose an obligation on the subject of the sentence—in this case, SunPower—nothing is accomplished by having the party under the obligation guarantee that it will perform the obligation. The obligation itself is all that’s necessary.

And in this context, the verb to guarantee doesn’t serve to convey its legal meaning, namely “To assume a suretyship obligation; to agree to answer for a debt or default.” Instead, to guarantee that is a form of rhetorical emphasis that simply reinforces the speaker’s passion, as inI guarantee that Accrington Stanley will defeat Scunthorpe on Saturday! Obviously, that isn’t what the drafter of the SunPower contract intended.

And he goes on for another paragraph, explaining the appropriate use of “to guarantee,” but I’ll let you read it yourself.  It’s a great blog, and the advice is always spot on.  He’s providing great advice, and I find my time there is never wasted.


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