A sampling of contract phrases
My observations about English so far have been general in nature. Now it appears logical to examine the examples of favourite contract phrases, which will help ease the way to fuller examination of entire negotiations and contracts. a full glossary is beyond reach but in what follows there is a listing of words and phrases that turn up in great many documents, with comments on each one. The words and phrases are presented in plausible contract sequence, not alphabetically.
"Whereas" Everyman's idea of how a contract begins. Some lawyers dislike "Whereas" and use recitation clauses so marked to distinguish them from the text in the contract. There the real issue lies; one must be careful about mixing up recitals of history with what is actually being agreed on. For example, it would be folly to write: "Whereas A admits owing B $10,000..." because the admission may later haunt one, especially if drafts are never signed and the debt be disputed. Rather less damaging would be:
"Whereas the parties have engaged in a series of transactions resulting in dispute over accounting between them..."
On the whole "Whereas" is acceptable, but what follows it needs particular care.
"It is understood and agreed" On the one hand, it usually adds nothing, because every clause in the contract is "understood and agreed" or it would not be written into it. On the other hand, what it adds is an implication that other clauses are not backed up by this phrase: by including the one you exclude the other. «It is understood and agreed» ought to be banished.
"Hereinafter" A decent enough little word doing the job of six ("Referred to later in this document"). "Hereinafter" frequently sets up abbreviated names for the contract parties.
"Knightsbridge International Drapes and Fishmonger, Ltd (hereinafter "Knightsbridge").
"Including Without Limitation" It is useful and at times essential phrase. Earlier I've noted that mentioning certain things may exclude others by implication. Thus,
"You may assign your exclusive British and Commonwealth rights"
suggests that you may not assign other rights assuming you have any. Such pitfalls may be avoided by phrasing such as:
"You may assign any and all your rights including without limitation your exclusive British and Commonwealth rights".
But why specify any rights if all of them are included? Psychology is the main reason; people want specific things underscored in the contracts, and "Including Without Limitation" indulges this prediction.
"Assignees and Licensees" These are important words which acceptability depends on one's point of view
"Knightsbridge, its assignees and licensees..."
suggests that Knightsbridge may hand you over to somebody else after contracts are signed. If you yourself happen to be Knightsbridge, you will want that particular right and should use the phrase.
"Without Prejudice" It is a classic. The British use this phrase all by itself, leaving the reader intrigued. "Without Prejudice" to what exactly? Americans spell it out more elaborately, but if you stick to American way, remember "Including Without Limitation", or you may accidentally exclude something by implication. Legal rights, for example, are not the same thing as remedies the law offers to enforce them. Thus the American might write:
"Without prejudice to any of my existing or future rights or remedies..."
And this leads to another phrase.
"And/or" It is an essential barbarism. In the preceding example I've used the disjunctive "rights or remedies". This is not always good enough, and one may run into trouble with
"Knightsbridge or Tefal or either of them shall..."
What about both together? "Knightsbridge and Tefal", perhaps, followed by "or either". Occasionally the alternatives become overwhelming, thus and/or is convenient and generally accepted, although more detail is better.
"Shall" If one says "Knightsbridge and/or Tefal shall have..." or "will have...", legally it should make no difference in the case you are consent in using one or the other. "Shall", however, is stronger than "will". Going from one to another might suggest that one obligation is stronger somehow than another. Perhaps, one's position may determine the choice. "You shall", however is bad form.
"Understanding" It is a dangerous word. If you mean agreement you ought to say so. If you view of affairs that there is no agreement, "understanding" as a noun suggests the opposite or comes close to it. .it stands, in fact, as a monument to unsatisfactory compromise. The softness of the word conjures up pleasing images. "In accordance with our understanding..." can be interpreted in a number of ways.
"Effect" Here is a little word which uses are insufficiently praised. Such a phrase as "We will produce..." is inaccurate, because the work will be subcontracted and the promise-maker technically defaults. Somebody else does the producing. Why not say "We will produce or cause to be produced..."? This is in fact often said, but it jars the ear. Accordingly "We will effect production..." highlights the point with greater skill.
"Idea" This word is bad for your own side but helpful against others. Ideas as such are not generally protected by law. If you submit something to a company with any hope of reward you must find better phrasing than "my idea". Perhaps, "my format" or possibly "my property" is more appropriate. Naturally, if you can develop an idea into a format or protectable property, the more ambitious phrasing will be better justified.
"As between us" It is useful, because people are always forgetting or neglecting to mention that a great many interests may be involved in what appears to be simple dialogue. "I reserve control over..." and "You have the final power of decision over..." sound like division of something into spheres, but frequently "I" am in turn controlled by my investors and "You" - by a foreign parent company, making the language of division inaccurate. Neither of us really controls anything, at least ultimately.
Thus it will be useful to say, "As between us, I control..." and so on.
"Spanning" Time periods are awkward things: "...for a period commencing August,1 and expiring November,15..." is clumsy; "...from August,1 to November,15..." is skeletal when informing how long a contract obligation endures.
But during particular time periods one may be reporting for work, for example, three days out of every five, or doing something else that is within but not completely parallel to the entire time period involved.
A happy solution is the word "Spanning". It goes this way:
"Throughout the period spanning August,1 - November,15 inclusive you will render services as a consultant three days out of every five."
It will be useful to put "inclusive" at the end for without it you may lose the date, concluding the period being spanned.
"Negotiate in Good Faith" The negotiators have worked until late at night, all points but one have been worked out, the contract will never be signed without resolution of some particular impasse. What is there to do?
Agree to "Negotiate in Good Faith" on the disputed point at later time. This is done frequently, but make no mistake about the outcome. The open point remains open. If it happens to be vital you may have no contract at all. "Negotiate in Good Faith" is one of those evasions that must be used sparingly. At the right time it prevents collapse, at the wrong time it promotes it.
"Confirm" It suggests, of course, that something has been agreed upon before. You are writing now only to make a record of it. "I write to confirm that you admit substantial default in delivery" Frequently we encounter it in ordinary correspondence: "Confirming your order", "Confirming the main points of our agreement", and so on.