If it is helpful to you, I’ll explain why it is a little bit difficult for me to follow your suggestions. Particularly as a young attorney, only four years out of law school, I am somewhat reluctant to disregard long-established traditions. In general, this seems like a wise approach as these traditions usually have reasons behind them of which a person may not be immediately aware. (Edmund Burke famously espoused the importance of this principle.) That’s not to say that traditions should not be changed when they become outmoded, but I would look for more than one person’s say-so and I haven’t been able to find it. As it is, outside counsel tells me that it is not important to make those changes and the templates in Westlaw don’t seem to incorporate your suggestions. I can’t even find an article on the other side of the issue that would help me weigh the two sides of the argument!

And here’s how I responded:

Regarding your closing paragraph, I understand your reticence. But your faith in traditional contract language is misplaced. You suggest that traditional usages must have some rational underpinning. I’ve spent 14 years poking around in the entrails of contract language, and I hope it comes across in my writings that I’m pragmatic and equipped with better-than-average semantic acuity. If I say that the language of mainstream contract drafting is dysfunctional, that’s because it is. The evidence for that dysfunction is on display in page after page of my book, and on my blog, along with my recommendations for superior alternative usages. Better contract language doesn’t come from placidly accepting what’s handed to you. Instead, it comes from testing the alternatives in the marketplace and using those that prove themselves to be clearest and most efficient.

As for the fact that you haven’t been able to find any writings that support my positions, that’s because there’s simply no one else out there analyzing contract language in excrutiating detail. But that doesn’t mean that my recommendations constitute nothing more than personal opinions; that something I addressed in this December 2007 blog post.

More generally, in order to use a reference work, you have to decide whether it’s reliable, and then you rely on it, unless your own knowledge—as opposed to prejudice—allows you to question it. Life’s too short for lawyers to second-guess everything they read in reference works. And when it comes to manuals of style, ultimately there’s value in having everyone following the same rules, even if there’s not much to choose between some of the usages. I leave it to you to decide whether you have enough confidence in my book to rely on it. In that regard, you might helpful some of the testimonials on this page of my site. And for what it’s worth, MSCD is widely used. Of course, to assess my book, you’d probably need to get hold of a copy!

Instead of using my book, you could rely on your outside lawyers’ reassurances that everything’s just fine as is. But what are their credentials as experts in contract language? Just having deal experience isn’t enough. It may be that they have all sorts of valid and nuanced objections to my recommendations, but I doubt it. I suspect that like everyone else, they’re churning out crap, either because they’ve acquired a taste for it or because in the high-pressure transactional world, currently no one has time or resources to do otherwise.

And I’m not surprised that they don’t want you getting any fancy ideas about improving contract language. They’d prefer to have you be a placid consumer of their products—reinventing the wheel has long been a reliable source of contract-drafting billable hours. If I were in your shoes, I’d be inclined to use my clout as client to say that I want my contracts purged of impenetrable gibberish. It wouldn’t take much for you to be more knowledgeable about contract language than your outside lawyers. Just read my book.

And as regards Westlaw’s forms, I haven’t looked at them in a while; I’ll do so. But of course they’re going to follow the herd by using mainstream contract language. It would be unrealistic to expect them to be a source of innovation or cutting-edge expertise. And by the sounds of it, they’re not.

I’m acutely aware that what I have to say doesn’t come as good news. Improving contract language is a laborious process that many, perhaps most, won’t have the time, expertise, or resources to attempt. But analyzing the current dysfunction and building a new set of rules is a necessary first step towards a real solution, which is to commoditize and outsource contract drafting. We’ll see in the coming years what sort of progress we make.

If this exchange prompts any thoughts, by all means chime in.

In that regard, I was  pleasantly surprised to notice yesterday that Venkat Balasubramani, Seattle-based tech lawyer, proprietor of the Spam Notes blog, and Twitter man-about-town, had posted the following Twitter update:

the fact that only 180 of the 5000 Lex Tweeters or so are following @AdamsDrafting weakens my faith in the legal profession

Venkat’s generous tweet got me thinking. My relatively limited Twitter following comes as no surprise, as it seems to match the extent to which my stuff has made inroads in the contract-drafting world.

Among other indicia of traction, MSCD remains an ABA bestseller, and West has been pleased with the response to my webcasts. But my book and blog readers, webcast and seminar participants, and in-house seminar customers represent only a small fraction of the vast potential audience.

At the risk of sounding complacent, I don’t think my relatively low profile is a function of me or my work. Instead, I suspect that the market is reluctant to face two unpleasant truths: The first is that as a general matter, the language of mainstream contract drafting is dysfunctional, resulting in everyone’s wasting vast amounts of time and money, and there’s no easy fix. The second and related unpleasant truth is that anyone who has learned to draft by recycling the language of precedent is probably not as accomplished a drafter as they might think.

One small indication that the market is ambivalent about a rigorous approach to contract language is that this blog is every so often referred to as a “niche” blog. To me, “niche” connotes narrowness. It doesn’t just mean “specialized,” as pretty much every law blog is specialized.

So is this a niche blog? It’s the only blog devoted to contract drafting. Untold thousands of lawyers worldwide devote countless hours to contract drafting, and companies spend vast amounts of money on the contract process. To my mind, nothing about this blog, or the topic, screams “niche.” If this blog is considered a niche blog, perhaps it’s because many transactional lawyers are comfortable with the current dysfunction, regardless of the cost. Change is scary; if we ignore it, perhaps it will go away.

Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute’s requirement that an adverse employment action was taken “because of” age means that “age was the ‘reason’ that the employer decided to act.” (Gross v. FBL Fin Servs, Inc., USSCt, Dkt 08-441). Thus, held the majority, to establish a disparate treatment claim under “the plain language” of the ADEA, “a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Age bias must be the sole cause, not just one cause.

Of course, as we all know, reasonable minds can differ. And in this case, four Justices had an entirely different take on the meaning of those two little words: “The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee,” wrote Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissenting.

Issues that arise in statutory construction have a way of cropping up in contracts, too, and I can imagine that this one might.

I say in MSCD 12.456 that you should be cautious about using in contracts the word because—outside of the recitals, contracts aren’t the place for explanation. But I assume that it’s relatively commonplace for contracts to contain the construction If X because of Y, then Z. (Or If X due to Y, then Z.) And I can imagine parties fighting over the issue that arose in Gross: does Y have to be the sole cause of X, or is it enough that Y was one of a number of factors contributing to X?

I can’t research this issue online, as unsurprisingly enough Lexis and Westlaw don’t consider because a legitimate search term. I’ll have to wait until the fall, when I’ll have access to Penn Law’s copy of Words and Phrases. Meanwhile, if anyone is aware of any relevant caselaw or disputes, or has encountered this issue firsthand, please post a comment.

Of course, the issue for the drafter would be how to express either meaning rather than leaving it to the courts to resolve any confusion. Once I get a sense of the extent to which this is a real issue, I’ll come up with some wording.

I suggest that such firms have a choice: either they’re going to give their apprentices the same old training, just more of it, or they’re going to use their new programs as an occasion to rethink their processes. Here’s how it might play out in the realm of training contract drafting:

If all you’re interested in is a goosed version of your normal training, you’d dragoon a partner—perhaps someone who otherwise would be spending much of their day gazing out the window—to put together a training program. Odds are it would consist of a mish-mash of conventional drafting wisdom, with most of it being devoted to the structure of M&A contracts. What would be conspicuously absent is a coherent overview of the basics of contract language.

The lightweight nature of the training would in effect acknowledge that centralized standards are less important than the preferences of individual partners. The apprentices would soon realize that the work would continue to be done the old fashioned way—by regurgiating, on a wing and a prayer, precedent contracts that not only are of questionable quality and relevance but also reflect inconsistent substance and drafting usages.

If you’re interested in a game-changing training program, the first thing you’d do is adopt a style guide for contract drafting. That’s something I discussed in this January 2009 blog post. Your only real choice would be to adopt MSCD by means of a short document laying out some explanatory guidelines. (Anything you try to prepare on your own would be impossibly skimpy.) The style guide should be as near to mandatory as is possible in a law firm.

Then you’d train your apprentices in drafting consistent with the style guide. And over the long term, you’d overhaul your templates to make them consistent with the style guide. To accomplish that, it would be a good idea if, at the same time as setting up your apprenticeship, you were to establish a role for practice-support lawyers. And you’d want to automate the drafting process, to the extent your workload permits it.

As to the odds of such an enlightened training program, I see no reason to be particularly upbeat, given the obstacles to change at law firms. (That’s someting I discussed in this June 2008 blog post.) But really, what’s mostly required is a change in attitude.

But lo and behold, forthwith was used in 502 contracts filed in the past month on the SEC’s EDGAR system, as compared with 1704 contracts using a more sensible word, promptly. Lawyers, quaintly archaic? Say it ain’t so!

But thank heavens for small mercies—no sign of hither and mayhap on EDGAR.

Johnson told Robinson he signed the agreement on the space where IBM was supposed to sign because he thought it would prevent the contract from taking effect. His lawyers said it was up to IBM’s human resources department to make him to sign the agreement or punish him—something that didn’t happen.

“The notion that Mr. Johnson intended to be bound by that agreement is absurd,” Johnson’s lawyer, Michael Banks, said at the hearing.

In their post, Law Shucks said they hoped that I’d have something to say about this—and I heard the call!

If Johnson’s defense were limited to the fact that he had signed the contract in the wrong place, he would likely have a tough time getting any court to buy his defense. Here’s what 1-2 Corbin on Contracts § 2.10 has to say generally about such matters:

A signature may be operative without respect to its position on the document, although it is customary to sign at the end of the writing and beneath the written provisions. There must be satisfactory evidence that the signature was affixed with intent to authenticate and express assent to the entire document.

And in a few minutes of rooting around on Westlaw, I found a relevant case, Karapanos v. Boardwalk Fries, Inc., 837 P.2d 576 (Utah App. 1992). Here’s the relevant language:

Karapanos argues that because he signed in the wrong place, the agreement was never executed. We disagree. Black’s Law Dictionary defines “execute” as “[t]o perform all necessary formalities, as to make and sign a contract.” 509 (5th ed. 1979). In addition, “it is a general rule that a signature located anywhere on a contract is sufficient to authenticate the instrument if it was placed there with the intent to do so.” Pio v. Gilliland Constr., Inc., 276 Or. 975, 560 P.2d 247, 250 (1976); see 1 Corbin on Contracts 122 § 31 (1950). Karapanos admits he intended and believed the agreement to be enforceable when he signed it. In fact, he assigned his interest under the agreement to Guardian State Bank to secure a loan. He also flew to Maryland to receive training from Boardwalk. Boardwalk similarly conducted itself as if the agreement were fully enforceable. Boardwalk gave Karapanos confidential and proprietary materials, including operation and training manuals, business plans, budgets, and equipment specifications. It was only after Karapanos began having doubts about his decision that he questioned the enforceability of the agreement. Therefore, we conclude the parties executed the agreement, and we will enforce the agreement as it is written.

The lawyers for our former IBM executive would doubtless distinguish Karapanos by saying that Johnson never did anything to suggest that he thought the contract was enforceable. The problem is that the way you comply with a noncompetition agreement is by … doing nothing. So lack of any indication of assent other than Johnson’s signature wouldn’t seem to prove anything.

But there’s more to Johnson’s story that the fact that he signed in the wrong place. Apparently IBM never signed the contract and returned the original to Johnson, who refused requests to sign another. So the story is murkier than it seems at first glance.

Here’s the opening paragraph of what A Dictionary of Modern Legal Usage has to say on the subject:

oblige; obligate. The differences between these terms lie more in their uses than in their senses. Both words may mean “to bind by law or by moral duty.” In legal contexts, the sense of both words is usually “to bind by law”—obligate occurring more frequently—whereas in lay contexts the sense of moral duty predominates.

Mark is in effect suggesting that obligate is a “back-formation” from obligation. Garner’s Modern American Usage says that back-formations are words formed by removing suffixes—in this case, -tion—from longer words that are mistakenly assumed to be derivates.

Some back-formations, for example donate, are well-established, and I’d hesitate to suggest that obligate is new-fangled. According to H.L. Mencken’s The American Language, it’s been with us for at least a couple of centuries. And The New Fowler’s Modern English Usage says that obligate “was once (17-19C.) standard in [British English] but has retreated into dialectal use, while remaining common (beside obliged) in [American English].”

But one should be careful to distinguish legal and lay uses of the word. The New Fowler’s Modern English Usage notes that “use [of obligate] in law is outside the scope of this book.”

I’m OK with obligate in contracts, and to my ear oblige sounds odd—I associate it with the “moral duty” meaning. For what it’s worth, U.S. drafters feel likewise: obligated occurs in 1089 contracts filed on the SEC’s EDGAR system in the past month, as opposed to 189 contracts using obliged. I’d be interested in a similarly sort-of-empirical assessment from other jurisdictions.

But it’s meaningless to discuss the merits of obligate without considering how it’s used in contracts. I use it very little, as it has no role to play in my categories of contract language. I don’t use it to express obligations—that role is played by shall or must, depending on the context. I use obligate only to refer to obligations created elsewhere in the contract, or in some other contract. For example, in a set of recitals I might say “Under the Widgetco License Agreement, Acme is obligated to … .”

Anglophones in Quebec routinely use French equivalents in English that even anglophones in the rest of Canada don’t use. So you have the English word delay being used as the equivalent of the French word délai, meaning “period of time.” Hence the following, from a Quebec lease filed on the SEC’s EDGAR system: “If the Tenant elects to lease the space within the stipulated delay, it shall … .” Quebecois understand what’s going on, but anyone else might do a double-take.

I’m not suggesting that this is going to cause any real confusion, or that Quebecois should do anything differently. I simply enjoyed spotting it.

Incidentally, I’m familiar with the notion of false friends because my sister Christine is a conference interpreter. I recall a real-life instance of false friends that she regaled me with. Those with some facility in French and Italian might, like me, find it highly amusing. As I recall it, a native Italian speaker offered the following from the podium at a conference, to explain the late arrival of someone from his delegation:

Monsieur l’Ambassadeur est en rut, et il vient de salir l’escalier!

Kevin’s topic was things to bear in mind when drafting contracts governed by the law of a civil-law jurisdiction. It’s a topic I haven’t seen addressed in print, so I permit myself to bug Kevin sporadically. Yesterday I followed up with him regarding his assertion, during our panel discussion, that time is of the essence provisions are of questionable enforceability in civil law jurisdictions.

In response, Kevin sent me the following language from article 1604 of the Quebec code: “[A creditor] is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation.”

I incorporated Kevin’s input in my latest attempt to summarize the problems with time is of the essence:

First, the phrase is often used in a provision stating—the exact wording varies—that Time is of the essence for purposes of this agreement, even though it’s hard to imagine that the parties contemplated time being of the essence for purposes of all performance under the contract.

Second, even if it’s clear what performance it applies to, the phrase is silent as to the exact consequences of untimely performance.

Third, you see time is of the essence provisions even in contracts that use liquidated-damages provisions and express termination provisions to specify the consequences of delay. Such specific provisions should override a generic time is of the essence provision.

And fourth, whereas termination for any tardiness may make sense in some contexts, in other contexts—for example, in a construction project—a missed deadline might occur after substantial performance, and allowing the other party to terminate could result in unjust enrichment. A common-law judge might or might not be troubled by that unfairness, but it would likely create problems in civil-law jurisdictions, which frown on rescinding a contract based on trivial nonperformance.

So if one or more deadlines in a contract are particularly important, address the issue directly and explicitly rather than using the jargon that is time is of the essence.  I suggest in MSCD 12.403 some language that one could use in one particular context. There’s no magic to it, but I wouldn’t just say “The deadlines in this agreement are essential,” as that’s simply a plain-English equivalent of time is of the essence. Instead, I’d focus on the consequences of failing to meet any deadlines, and might also say why the deadlines are important and have the other party acknowledge as much.

I know I’ve addressed time is of the essence previously, most recently in this March 2009 post. But it usually takes several attempts before I’m satisfied with my take on a particular subject. I suspect this won’t be the last time I tackle time is of the essence.

I’m preparing a partnership agreement and have been given precedent to work with. Using MSCD, I have spent some time trying to rework the precedent’s archaic language to make it more readable. It says, several times, “Each of the Partners severally represents, warrants, covenants and agrees with each other Partner that such Partner (a) has the capacity to enter into the agreement, (b) shall ensure that its status shall not be modified,” etc.

I’m not sure how to tackle the wording in bold italics. I’ve looked at four other partnership agreements and the same quadruplet wording appears in various places in each agreement. Is it used for belt and suspenders purposes, or just because no one has any idea what to say? I’ve looked at your book, and I see that you have tackled covenants and agrees to, but it is a bit daunting to read two couplets side by side. And the drafter obviously thought this language was important. What do you recommend I do with it?

Here’s my reply:

The initial question is, what one or more categories of contract language follow “represents, warrants, covenants and agrees”? The example you cite consists of (1) language of representation and (2) language of obligation imposing a duty on the subject of the sentence. In an ideal world, for the former you’d say “Acme represents” and for the latter you’d say “Acme shall.” Your language is clumsy because it jams the two concepts together and also adds redundancy.

Regarding the redundancy, you’ve noted MSCD’s discussion of covenants and agrees to. MSCD also discusses represents and warrants, but click here for a recent blog post that looks at it from a Canadian perspective.

And look at what my book says about joint and several. Several is a liability concept; it doesn’t make sense to have anyone “represent severally.”

I hope this helps!