Just like matter can be broken down into molecules, atoms, sub-atomic particles, and quarks, so too can a contract be described in various levels of hierarchy: articles, sections, clauses, sub-clauses, and categories of language. This post addresses the quarks of contract drafting.
While browsing the web for contract-drafting-related articles (yes, I do that), I came across this article by Lori Johnson at UNLV on the "building blocks" of a contract. After a hearty conversation with Lori on the topic, I'm still left wondering: what makes a "building block" a building block?
Ken Adams's A Manual of Style on Contract Drafting initially inspired me to think about the clauses in contracts as belonging to one—and only one—category of contract-drafting language. These categories form the foundation of expression in contracts. They are a contract's building blocks. Components of the whole that enable the drafter to clearly convey substance.
There are various categories that Lori, Ken, Tina Stark, and I (and others) have identified. Currently, I include the following as the categories of contract-drafting language:
- language of performance
- language of obligation
- language of discretion
- representations and warranties
- acknowledgments
- language of policy
Ken has some new categories in his most recent edition of A Manual of Style for Contract Drafting, which I need to explore further. And he has also voiced his opinion that "warranties" really don't constitute a separate category of contract-drafting language and that representations and acknowledgments are two sub-types of a more general category: language of declaration. Other authors seem to refer to "rights" as a separate category. (To my mind, rights are not a separate category of contract-drafting language; rather, they derive from other categories.)
So what is a "category of contract-drafting language"?
I tend to think (for now...) that a category of contract-drafting language exists if it serves a unique function that you can express in plain english. For example, for each of the categories above, here's how I think of them:
- language of performance: something that's happening by virtue of entry into the contract
- language of obligation: what the parties have to do or are prohibited from doing
- language of discretion: what a party is permitted to do (but, as I'll discuss in a future post, I view language of discretion as really just an exception to an express or implied prohibition imposed by law or by a contract)
- representations and warranties: statement of something that is (or will be...) true. I'm debating with myself as to whether "warranties" constitute a distinct category or whether they should be included at all. (I'm winning the debate.)
- acknowledgements: something that a party is openly setting forth in writing that the party is accepting as true (whether or not that thing is actually true)
- language of policy: the "rules of the contract"; this is the trickiest category of contract-drafting language for me
In addition to the categories noted above, there are two other types (I hesitate to call them "categories") of contract-drafting language that can serve to qualify the nature of a given category of contract-drafting language:
- language of exception and subordination: language that serves as either absolute or a degree of exception to a given clause
- conditional language: language that qualifies the the extent to which a given clause applies
Those are the quarks that I work with to draft my contracts. As I routinely trumpet when giving CLEs (and in prior blog posts), in order to successfully draft a contract, you need to know—for each clause—which quark you're dealing with and how that quark functions. Only then can you properly assemble the atoms, molecules, and complex compounds that comprise a contract.
This article is presented for informational purposes only and is not intended to constitute legal advice.