However, I have been going through this template for over 4 hours and still unable to understand a single line because its just so bad english.
I am kind of irritated & angry at the same time. We are all told that we should write proper, concise, accurate and clear. But when it comes to writing contracts where everything should be crystal clear, we have to revert to writing jumbled up phrases, 10 lines long sentences and highly complicated words.
I feel that there is a huge gap between how people/companies interact with each other now and the formalities of paper work. Perhaps an opportunity of a startup that would introduce a new way of writing contracts
Contracts are not actually english, although they may contain familiar words. Contracts are actually a kind of code designed to be run in a courtroom. Many of the silly sounding words and phrases are actually reserved words in this code and have special meanings.
Sometimes the obfuscation is deliberate on the part of the legal profession in order to keep them all employed. (At least there is no incentive for them to make it simpler.)
Don't feel bad. Imagine how a lawyer would feel if confronted by a large perl script that his entire livelihood may or may not depend on. :)
Contracts are English, and there is no reason why a skilled, competent lawyer cannot write a contract that is both easy for non-lawyers to understand and also enforceable in Court. There are lots of bad contracts out there because there aren't many clients willing to pay a lawyer to re-engineer poorly written contracts that are nonetheless believed to "work," i.e. be interpreted by a court in a predictable manner. Every experienced coder has seen the same phenomenon: if a body of code has been written, re-written, and patched over time, it probably looks pretty awful now and could stand a good deal of refactoring, but does anyone do that? Witness the OP, who apparently found a form somewhere and is trying to edit it to his purposes.
It's not like contracts are written in a secret language. There is a background body of knowledge that is helpful to have in writing and reading them, but it is also crucial to understand the industry involved.
A contract is a "meeting of minds", and the minds are the minds of the parties not the minds of lawyers and judges. If the parties can't understand it, it is not a contract, any more than the signature of an Alzheimer's patient is valid, and signing something not clear and plain is a bad idea.
In the Anglo-Saxon/British-American/Western/Modern or whatever you want to call it system of law, we do not have specialized codes that require experts to be intermediaries between parties to a contract.
Humanity has experimented with the specialized code / scribe / clerk way of doing law. Often when an advanced society does not have widespread literacy, there is a specialized class through which all legal actions must flow; but as the aphormism says, "the life of the law is in experience not logic", and however appealing to technical people those special codes and classes of experts might be, experience shows that the code / expert societies are replaced by the common language / accessible court system.
Enough bullshit philosophy and history: here's some actually useful advice. Collect example, well and simply written contracts. Start from example contracts in the Nolo publications or books like "Legal Forms for Everyone" by Carl W. Battle (ISBN 978-1-58115-451-1). If you have business contacts who have done similar contracts, ask them for a copy that you can use as a template.
After all, that is all the high-priced legal firms do. They have their collection of cribs of previous documents and they re-work and re-combine as needed.
This is not to belittle the legal profession or suggest you don't need a lawyer. Simply because you can express something in simple clear language and both parties agree, does not mean it will hold up in court or that it is a good idea.
I spent some time at a gov't subcontractor and the copy-paste version of cya was clear as day. Sometimes you'd see where search/replace failed and there would be other program names.
It was a mess and I'm fairly certain it was because of our size. Fighting a contract in court is an expensive and potentially reputation damaging prospect, so if you have significantly less resources at your disposal it is very likely that you won't be able to fight the baked in vagueness and contradiction.
It would serve the fucker right! :-)
If the contract is not in legalese, but is in normal clear English, a court should (and I'll assume it would) decide the same way. If the "clear English" is somehow ambiguous, the court should decide it in the spirit of what parties most likely meant when they signed the contract. It can determine that on little clues in the language, but also on accompanying letters, or even on what is considered normal behaviour in the same kind of situation.
So, why doesn't it work like that? Why is everybody so afraid to write clear English which describes what we mean?
I look upon this with a foreigner's eye. I have no problem reading most Dutch contracts and even laws that come my way. It takes longer to read than an average news paper article, but I can figure it out quite easily. I'm well educated, but I don't have a law degree.
Thing is, contracts are for when you get in a fight, and once you're there, figuring out in a fair manner what spirit you were in when signing is an incredibly hard problem.
"NO WARRANTY
11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES."
And:
"There is no warranty on this software to the extent permitted by applicable law. The copyright holder is not liable for any damages."
And what's with the capitals on that clause? I don't believe for a second it's less valid if not in capitals...
I started liking that language after going through that process a few times.
Tip: Try to read as slow as you can and don't miss any word/phrase. Look up dictionary if you need to.
Many awkward sounding phrases actually refer to a specific case law precedent. Judges are disinclined to contradict a previous ruling. By inserting the phrase into a contract and both parties agreeing to the contract you actually save time/money because when it comes time to sue the issue has already been decided by the phrase. The court just needs to determine if the facts fit the previous case law.
Think of these awkward sounding phrases as macros that other people have written over decades and now belong to the common code base called case law. They might be very difficult to understand at first, but their near universal meaning makes them more valuable than writing your own 'clearer' version. If your version goes to court the judge will have to interpret your new language instead of referring to prior case law. Since most judges are very busy and you clearly don't know what you were doing they will probably ignore your language. Just pray you didn't let the other party insert theirs.
What's more each type of law has it's own specific phrases. A construction law attorney was explaining to me that the specific phrase 'workmanlike performance' can create a warranty that may not be implied by law for the specific services at issue. But 'does good job' isn't the same thing.
The modern trend is unmistakably in favor of plain English. See, e.g., the work of legal-writing guru Bryan Garner, who recently co-authored a book on the subject with Justice Scalia.
As Ken Adams rightly points out: "Caselaw is full of instances of courts displaying a poor grasp of semantics. It would be foolhardy to rely on courts to be arbiters of everyday language." He also notes that "[c]ourts in different jurisdictions have seen different meanings in everyday usages. ... relying on courts to determine the meaning of everyday usages is to invite inconsistency." See http://adamsdrafting.com/system/2009/03/29/mscd-outside-us/
The SEC has also been weighing in: For 10 years now, the Commission has required securities filings to be written in plain English, and has bounced more than a few that aren't. See http://library.findlaw.com/1999/Jun/1/127259.html.
Seriously though, this problem is not limited to contracts. Most of the law is written in a convoluted way, because there's so much legacy code in there, and also because codifying real life is just such a complex undertaking.
Well, they already use include files, so why not? :-)
> Perhaps an opportunity of a startup that would introduce a new way of writing contracts
Yes! Every contract I've ever seen is just an analog program, a decision tree really. Legal concepts are mostly classes. Since you can do things like multiple inheritance with OO you should be able to mimic contract law in a program. But is designing such a service lucrative?
The hardest language in contracts - apart from all the whereupons and nods to the Magna Carta - has to do with contingency planning and minor details. It's all the "if A then B when (C | D)" cover-your-ass reserve. That stuff can get pretty terse and for most people it's a total waste of time to muddle through, so we just sign it and hope it didn't give away our wife as chattel. Of course when we cut out these complexities our contracts might not be as watertight. But I think this should be a judgment call between the participants. What good is a "safe" agreement if no one but a judge can understand it?
You would probably want to focus on a small, profitable subset of contracts. Take web startup investing. There ought to be a way for Startup X to have a form on its site that lets me invest in their company. Maybe that's just too wild of an idea for 2009 but if startups become financially transparent -- I mean really transparent -- micro investing is bound to happen. Government loopholes notwithstanding.
In the interest of promoting "code reuse" by contract drafters, I've been building a community form file of contract forms and clauses - see http://www.firstdrafter.com (in progress).
There is a 'plain english' style that is much better than the standard legalese.
I can't help but point at the spelling and grammatical errors in your post as some of the issue in your understanding. Nonetheless, contracts are a daunting read for most anyone.
