Recently, I had the pleasure of attending a continuing legal education seminar on contract drafting. Now, I know that many may think that this is a totally tedious undertaking, but I remain fascinated by this particular form of writing. Since the beginning of time, principles of exchange that are embodied in contracts have been necessary for human societies to function. While contracts can certainly be verbal, a written instrument that articulates the elements of an agreement is usually preferred.
When I first meet with a new client, it is not unusual for me to look at a document that the client has taken from a website on the internet and already signed. The client asks me to review the document and offer a legal analysis of the contract. When I inquire about the client’s understanding of the document he or she has downloaded from the internet, the client frequently does not understand the meaning of the words in the document. Sometimes, the client “tweaks” the language to reflect what the client believes is the intent of the parties to the contract. In such instances, these “tweaks” may result in language that is so confusing that I need to say that absent amendment of the document, a court may need to intervene to interpret the contract.
So what can a thoughtful person do to create a clear, understandable, and legally enforceable agreement? While it may be useful to start with a template, looking at the contract as a story may help organize thinking. I especially enjoy spending time with my clients to help them craft their “stories” when facing a major family transition associated with divorce. To begin this process, we work together to envision changes in their financial condition and time spent with children when two households are established.
Like any good story, a contract is a special form of a narrative and if drafted correctly, follows a specific format and contains special vocabulary. A contract contains basic information such as the names of the parties, definitions of the meaning of certain words contained in the contract, representations made by the parties to the contract, covenants and conditions, operative language, remedies for breach of the contract, and signatures of the parties. While this list is not exhaustive, a contract is in essence a way to tell the story of the promise made by at least two people which creates a legal obligation to demand performance of what is promised. The specialized vocabulary associated with a contract may be daunting and require explanation. Similarly, determining what to include or delete in a contract depends on the objectives to be achieved by the individual party, by what the law permits and by what the other party to the contract wishes to achieve. But by keeping in mind that a contract is a story, we can create documents that are clear and understandable and ultimately reduce friction that results when big parts of the “story” are left unsaid.