The Art of Legal Drafting (Lesson #1)…

Feb 05

The Art of Legal Drafting (Lesson #1)…

As part of the Legal Forms project which we are releasing this month, I took it upon myself to become the best legal drafted I could be. I read all the books I could get my hands on and surfed the internet for tips and tricks on how to draft in your language: Human!

So I decided to share some of the wealth of knowledge about the topic of legal drafting with you. Lucky you!

So here is lesson #1: the introductory clause.

Agreements typically start off with an introductory clause. This is what tells you what the agreement is, when it is being entered into, and who the parties are. I’ve seen some pretty different variations of this. The key here is that, so long as it’s clear and certain and answers those few basic issues, you have some flexibility over how to present the information. Here are some tips and tricks:

Give the agreement a relevant title.
You don’t need to identify the parties to the fullest extent possible. So if a corporation is a party, you can put their address in the notice section in the General Terms (at the end) instead of here. Putting it in the introductory clause clutters things up.
Don’t identify or try to explain what the relationship of the parties is. Leave that for the Background.
I’m not a big fan (unless you have a lot of parties) of separating each party and writing “On the First Part”, “On the Second Part”, etc. Not sure where this custom came from, but it’s seemingly not necessary.
You can use defined terms to identify the parties in a short form way to be used throughout the rest of the agreement. I like to make this stand out by putting the defined party term in bold and underline (e.g. the “Party“).
I like to use the following example as an introductory clause: “This X Agreement is dated X and is between X and X”. Notice how I didn’t say the agreement was executed on this date? That’s because there’s a possibility that it is executed on a different date than the date it was signed. Execution basically means signed and delivered. But delivery may not be done on the same day. You get the point. To simplify: just say when the agreement is dated. It’s clearer than using the word “made” or “entered into”. What about the use of the word “between”? Why not “by and between”? Well, it’s simple: is too wordy. You could also use the word “among”.
Try not to clutter the introductory clause with extra information that isn’t necessary (e.g. what the parties intentions are, etc.).

Keep it clean. Keep it simple.