Friday, August 11, 2006

Legal drafting: expensive comma--more precision

I wrote yesterday about a contract in which a comma ended up costing one party the deal it thought it had made. I proposed a rewrite of the entire provision in two sentences instead of one:
  • This agreement continues in force for five years from the date it is made. After the first five-year term, it continues in five-year terms unless either party terminates it by one-year's prior written notice.
My friend Ken Adams discussed the same provision here and proposed a rewrite of the entire provision that also used two sentences instead of one:
  • The initial term of this agreement ends at midnight at the beginning of the fifth anniversary of the date of this agreement. The initial term (including any extensions in accordance with this section 12) will automatically be extended by consecutive five-year terms unless no later than one year before the beginning of any such extension either party notifies the other in writing that it does not wish to extend this agreement.
Ken is a high-level, professional contract drafter. I am a legal-writing teacher and plain-language zealot. That may be enough to explain the differences in our approaches to the problem, but I'd like to be more specific. Ken did more than eliminate the ambiguity. He added precision that was not present in the original.
  1. He added precision about the ending of the first five-year term ("midnight at the beginning of the anniversary . . .").
  2. He added precision about the one-year notice period ("no later than one year before . . .").
  3. He clarified that this section governs all subsequent extensions ("including any extensions in accordance with this section . . .").
The kind of precision Ken added would have been valuable in a contract like the one containing the "expensive comma." According to the news article, the expensive comma cost about$2 million.

Better Legal Writing
Writing for the Legal Audience

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