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Drafting contracts is one of the pleasures of practicing law.
But if your contract ends up in court, your handiwork will
surely be tested by your opponent's skilled lawyers attacking
every paragraph, sentence and word. This article provides fifty
simple tips for writing the contract that is so clear that no
one will want to litigate it.
These tips apply to writing all kinds of agreements: real
estate sales contracts, employment contracts, equipment leases,
prenuptial agreements, property settlement agreements. They even
apply to stipulations and settlements in litigation. Wherever
clarity and simplicity are important, these tips will guide you
Before You Write the First Word
- Ask your client to write down the terms of the
contract. This can be in the form of a list, outline or
narration. Doing this will help the client focus on the
terms of the agreement.
- Engage your client in "what if" scenarios. A good
contract will anticipate many possible factual situations
and set forth the agreement should those facts come into
existence. This will flush out many issues that you may not
think of on your own.
- Ask your client for a similar contract.
Frequently, clients will have had a similar transaction in
the past or access to contracts for similar transactions.
- Check the form books and treatises for a contract
form. Typical forms of contracts can be found in form
books, such as West's Legal Forms and Florida Jur Forms, as
well as in treatises and Florida Bar CLE publications. These
can be used as the starting point for drafting the contract
or as checklists of typical provisions and wording to
include in the contract.
- Buy forms on disk or CD ROM. Many treatises and
form books now come with forms on disk or CD ROM. Capsoft is
also selling Florida Bar CLE forms with its HotDocs document
assembly software. No matter how you get them, using forms
on disk or CD ROM saves time and avoids the errors of
- Don't let your client sign a letter of intent without
this wording. Sometimes clients are anxious to sign
something to show good faith before the contract is
prepared. A properly worded letter of intent is useful at
such times. Just be sure that the letter of intent clearly
states that it is not a contract, but that it is merely an
outline of possible terms for discussion purposes. See
Writing that First Word
- Start with a simple, generic contract form. The
form in Appendix A is such a form. It
provides a solid starting point for the structure of the
contract. Like a house, a contract must have a good, solid
- State the correct legal names of the parties in the
first paragraph. As obvious as this is, it is one of the
most common problems in contracts. For individuals, include
full first and last name, and middle initials if available,
and other identifying information, if appropriate, such as
Jr., M.D., etc. For corporations, check with the Secretary
of State where incorporated. (In Florida, call the Florida
Division of Corporations at 904-488-9000 or search its
corporation and partnership database from its website at
- Identify the parties by nicknames. Giving each
party a nickname in the first paragraph will make the
contract easier to read. For example, James W. Martin would
be nicknamed "Martin."
- Be careful when using legal terms for nicknames.
Do not use "Contractor" as a nickname unless that party is
legally a contractor. Do not use "Agent" unless you intend
for that party to be an agent, and if you do, then you
better specify the scope of authority and other agency
issues to avoid future disagreements.
- Include a blank for the date in the first paragraph.
Putting the date in the first paragraph makes it easy to
find after the contract is signed. It also makes it easy to
describe the contract in other documents in a precise way,
such as the "December 20, 1996, Contract for Sale of Real
- Include recitals to provide background. Recitals
are the "whereas" clauses that precede the body of a
contract. They provide a simple way to bring the contract's
reader (party, judge or jury) up to speed on what the
contract is about, who the parties are, why they are signing
a contract, etc. The first paragraph in the body of the
contract can incorporate the recitals by reference and state
that they are true and correct. This will avoid a later
argument as to whether or not the recitals are a legally
binding part of the contract.
- Outline the contract by writing out and underlining
paragraph headings in their logical order. The
paragraphs should flow in logical, organized fashion. It is
not necessary to write them all at once; you can write them
as you think of them. Try to group related concepts in the
same paragraphs or in adjacent paragraphs. For example,
write an employment contract's initial paragraph headings
- Complete each paragraph by writing the contract terms
that apply to that paragraph. This is simple. You
learned this in elementary school. Just explain in words
what the parties agree to paragraph by paragraph.
- Keep a pad at hand to remember clauses to add. It
is normal to think of additional clauses, wording and issues
while writing a contract. Jot these down on a pad as you
write; they are easily forgotten. Also keep your client's
outline and other forms in front of you as you write, and
check off items as you write them.
- Repeat yourself only when repetition is necessary to
improve clarity. Ambiguity is created by saying the same
thing more than once; it is almost impossible to say it
twice without creating ambiguity. Only if the concept is a
difficult one should you write it in more than one way. In
addition, if you use an example to clarify a difficult
concept or formula, be sure that all possible meanings are
considered and that the example is accurate and consistent
with the concept as worded.
What to Watch Out for When Writing
- Title it "Contract." Do not leave this one to
chance. If your client wants a contract, call it a contract.
A judge now sitting on the federal bench once ruled that a
document entitled "Proposal" was not a contract even though
signed by both parties. The lesson learned is, "Say what you
mean." If you intend the document to be a legally binding
contract, use the word "Contract" in the title.
- Write in short sentences. Short sentences are
easier to understand than long ones.
- Write in active tense, rather than passive.
Active tense sentences are shorter and use words more
efficiently, and their meaning is more apparent.
- Don't use the word "biweekly." It has two
meanings: twice a week and every other week. The same
applies to "bimonthly." Instead, write "every other week" or
"twice a week."
- Don't say things like "active termites and organisms".
Avoid ambiguity by writing either "active termites and
active organisms" or "organisms and active termites." When
adding a modifier like "active" before a compound of nouns
like "termites and organisms", be sure to clarify whether
you intend the modifier to apply to both nouns or just the
first one. If you intend it to apply to both, use parallel
construction and write the modifier in front of each noun.
If you intend it to apply to just one noun, place that one
noun at the end of the list and the modifier directly in
front of it.
- Don't say "Lessor" and "Lessee." These are bad
nicknames for a lease because they are easily reversed or
mistyped. Use "Landlord" and "Tenant" instead.
- Watch out when using "herein." Does "wherever
used herein" mean anywhere in the contract or anywhere in
the paragraph? Clarify this ambiguity if it matters.
- Write numbers as both words and numerals: ten (10).
This will reduce the chance for errors.
- When you write "including" consider adding "but not
limited to." Unless you intend the list to be
all-inclusive, you had better clarify your intent that it is
merely an example.
- Don't rely on the rules of grammar. The rules of
grammar that you learned in school are not universal. The
judge or jury interpreting the meaning of your contract may
have learned different rules. Write the contract so that no
matter what rules they learned, the contract is clear and
- Don't be creative with words. Contract writing is
not creative writing and is not meant to provoke reflective
thoughts or controversies about nuances of meaning. Contract
writing is clear, direct and precise. Therefore, use common
words and common meanings.
- Be consistent in using words. If you refer to the
subject matter of a sales contract as "goods" use that term
throughout the contract; do not alternate calling them
"goods" and "items". Maintaining consistency is more
important than avoiding repetition.
- Be consistent in grammar and punctuation. The
rules of grammar and punctuation you learned may differ from
others, but you had better be consistent in your use of
them. Be aware of such things as where you put ending quote
marks, whether you place commas after years and states, and
similar variations in style.
- Consider including choice of law, venue selection,
and attorneys fee clauses. If your contract gets
litigated, you might as well give your client some
"ammunition" for the fight. Examples of these clauses appear
in Appendices A and
Write for the Judge and Jury
- Assume the reader is a knowledgeable layman. If
your writing is so clear that a layman could understand it,
then it is less likely it will end up in court.
- Define a word by capitalizing it and putting it in
quotes. Capitalizing a word indicates that you intend it
to have a special meaning. The following are two sample
clauses for defining terms:
Wherever used in this contract, the word "Goods"
shall mean the goods that Buyer has agreed to purchase
from Seller under this contract.
Buyer hereby agrees to purchase from Seller ten (10)
frying pans, hereinafter called the "Goods."
- Define words when first used. Instead of writing
a section of definitions at the beginning or end of a
contract, consider defining terms and concepts as they
appear in the contract. This will make it easier for the
reader to follow.
- Explain technical terms and concepts. Remember
that the parties might understand technical jargon, but the
judge and jury who interpret and apply the contract do not.
Therefore, explain the contract's terms and concepts within
the contract itself.
Keep Your Client Informed While You
- All contracts should come with a cover letter.
This gives you a place to instruct your client on how to use
and sign the contract.
- Tell your client the ideas that come as you write.
Many ideas will occur to you as you write: things that could
go wrong with the deal, things that might happen in the
future, things that happened in the past, ways to structure
things better. Write these in your letter to the client.
- Inform your client of the risks. Writing a letter
to the client as you write the contract is the perfect way
to inform the client of the risks and rewards of entering
into the contract. Frequently, problems do not become
apparent until time is spent trying to word a contract.
What To Do After the First Draft Is
- Use your word processor's spelling and grammar
checker. This almost goes without saying today,
especially since Microsoft Word now checks your spelling and
grammar as you type.
- Let your secretary or paralegal read it. Not only
will your staff frequently find spelling and grammar errors
missed by your word processor's spell checker, but they will
find inconsistencies and confusing areas that you missed
- Stamp "Draft #1 6/21/97" on it. This may be the
first of many drafts, so avoid confusion early by numbering
and dating all drafts at the top of the first page. It is
also a good idea to write "DRAFT" across the face of each
page to preclude the possibility of an impatient client
signing a draft rather than waiting for the final version.
- Let your client read it. Letting the client in on
reading the first draft assures that your drafting will stay
in tune with the client's wishes.
- Save the drafts as multiple files on your computer.
If you save the first draft on your computer as two files,
you will have one file identified as the first draft and the
other identified as the current version. This can be done by
naming the current version "contract" and the first draft as
"contract.d1". Then, subsequent versions can be named
"contract.d2", "contract.d3," etc.
- Compare the current version to prior versions. If
you save draft versions, it is very easy to compare one
version to another using the word processor's compare
feature or using the CompareRite computer program. When you
compare "contract.d1" to "contract.d2", save the comparison
as "contract.c21" and print it to show the client what
changes were made.
How to Print and Sign the Final Draft
- Print the contract on 24 pound bond paper instead of
20 pound copier paper. Using a heavy bond paper will
make it easy to tell the original contract from copies. It
will also last longer.
- Print on pages using the same paper, and if pages are
changed, reprint the document using the same paper. This
will avoid an argument that pages were substituted after the
contract was signed.
- Sign the contract in blue ink, not black ink.
This, too, will make it easier to differentiate the signed
original contract from photocopies.
- Initial every page of the contract. Having each
party initial each page of the contract will make it less
likely that anyone could claim a page was changed after the
contract was signed.
- Identify the parties and witnesses who sign by
providing blank lines below their signature lines for their
printed names and addresses. This will make it easier to
find the witnesses if the contract is contested.
- Be sure that corporate officers include their titles,
the corporation name and the word "as." Failure to do
this can result in personal liability of the officer. The
proper way to sign in a representative capacity is as
ABC Corporation, a Florida corporation
John Jones, as its President
- Add a notary clause that complies with the notary law.
The notary acknowledgement in Appendix B
is such a clause.
If these fifty tips don't keep your contracts out of court,
try mastering Strunk & White's Elements of Styles. I hear it's
real handy in appellate work.
Appendix A (Basic
Form of Contract)
AGREEMENT made this _______ day of ____________, 20_____,
between ______________________, hereinafter called
"_______________", and ______________________, hereinafter
WHEREAS, ________________; and
NOW THEREFORE, in consideration of their mutual promises made
herein, and for other good and valuable consideration, receipt
of which is hereby acknowledged by each party, the parties,
intending to be legally bound, hereby agree as follows:
1. Recitals. The parties agree that the foregoing
recitals are true and correct and incorporated herein by this
___. Miscellaneous. Time is of the essence of this
agreement. This agreement is made in the State of Florida and
shall be governed by Florida law. This is the entire agreement
between the parties and may not be modified or amended except by
a written document signed by the party against whom enforcement
is sought. This agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an
original of this agreement. Paragraph headings are for
convenience only and are not intended to expand or restrict the
scope or substance of the provisions of this agreement. Wherever
used herein, the singular shall include the plural, the plural
shall include the singular, and pronouns shall be read as
masculine, feminine or neuter as the context requires. The
prevailing party in any litigation, arbitration or mediation
relating to this agreement shall be entitled to recover its
reasonable attorneys fees from the other party for all matters,
including but not limited to appeals. Pinellas County, Florida,
shall be proper venue for any litigation involving this
agreement. This agreement may not be assigned or delegated by
either party without the prior written consent of the other
IN WITNESS WHEREOF, the parties have signed this agreement
as of the day and year first above written.
Appendix B (Basic
Form of Notary Acknowledgement)
STATE OF FLORIDA
COUNTY OF ____________
The foregoing instrument was acknowledged before me this
_____ day of __________________, 20____, by _________.
Notary Public-State of Florida:
Personally Known _____; OR Produced Identification ______
Type of Identification Produced: ____________________________
Affix Seal Below:
Appendix C (Sample
Letter of Intent Form)
LETTER OF INTENT FOR POSSIBLE
CONTRACT FOR SALE OF ASSETS
Possible Seller: _____________________________
Possible Buyer: _____________________________
Date: ______________, 19_____
This is a non-binding letter of intent that contains
provisions that are being discussed for a possible sale of the
Business named above from the possible Seller named above to the
possible Buyer named above. This is not a contract. This is not
a legally binding contract. This is merely an outline of
possible contract terms for discussion purposes only. This is
being signed in order to enable the potential Buyer to apply for
financing of the purchase price. This letter of intent is
confidential and shall not be disclosed to anyone other than the
parties and their employees, attorneys and accountants and the
possible lenders of the Buyer. The terms of the transaction
being discussed are attached hereto, but the terms (and the
possible sale itself) are not binding unless and until they are
set forth in a written contract signed by Seller and Buyer. The
word "shall" is used in the attached terms only as an example of
how a contract might read, and it does not mean that the
attached terms are or ever will be legally binding.