Contract writing technique

2.1. General recommendations for the structure

 

First of all, it should be noted that the rules of preparation, methods, order, technique, etc. of writing the contract are not defined by legislation, due to which the contract maker, like any author, is free in his creativity. However, the contract must comply not only with legal norms, but also with the laws of logic, as well as the rules of modern language. A well-drafted contract is characterized by clarity, internal consistency, logical coherence, consistency, grammatical correctness, aesthetics, as well as the absence of inappropriate information, ambiguous and uncertain provisions.

To write a high-quality contract, the author of this document should pursue the following goals:

- The contract should be easily navigated not only by the authors, but also by any other persons;

- The structure of the contract should allow you to quickly find the necessary conditions and compare them with other contractual provisions.

Regarding the structure of the contract, authors can be recommended to consider the following.

The main structural unit is an article (or section), which is distinguished from other structural elements of the document by a number designation and a name corresponding to the topic of the section (for example, 2. GOODS; 4. DOCUMENTS; 6. CLAIMS, etc., or Roman numerals) and the location in the center of the line.

Chapters are divided into points or paragraphs. Items, in turn, can be divided into subsections or paragraphs; paragraphs - into subsections.

A clause is a separate, finished provision that does not have a name and is indicated by Arabic numerals with a dot or a letter. At the same time, the first digit of the item number corresponds to the section number (for example, the items of section 3 are marked with numbers 3.1., 3.2., 3.3., etc.).

A paragraph is a part of the text of the contract characterized by semantic unity, which is distinguished, as a rule, by an indentation in the first line (new line) and begins with a capital letter. With the help of a paragraph, the meaningful selection of important provisions of the text takes place.

Subclauses are constituent parts of a clause (paragraph) that have their own designations and represent a semantic unity. If the sub-item is a constituent part of an item marked with an Arabic numeral, then it is desirable to assign a number to the sub-item consisting of several Arabic numerals with a dot after each of them, the first of which indicates the number of the item (for example, sub-items of item 3.1. It is necessary to mark with numbers 3.1.1. , 3.1.2., 3.1.3., etc.). In other cases, the subsection can be marked with a number or a letter with a bracket.

Structural elements of the same class must have an identical arrangement and the same order of numerical or letter designations: paragraphs are located under paragraphs, paragraphs - under paragraphs, subparagraphs - under subparagraphs. Of course, structural elements must have single-order designations, that is, they must represent a consecutive series of numbers or letters.

Contracts often contain references to specifications, protocols, tables, graphs, maps, schemes, lists, etc. , which are recognized as an integral structural unit of the contract. In such cases, attention should be paid to the presence in the appendix of an indication of which contract it belongs to.

 

2.2. Methods of logical sequence of information presentation

 

It is a mistake to try to present the structure of the contract as something frozen. Each contract dictates its own organization. Nevertheless, there are general provisions inherent in any contract. One of the principles of text construction is the logical sequence of the presentation of information, which is achieved using the following techniques:

1. General provisions are placed before specific (specific) provisions.

2. More essential conditions are contained before less important ones.

3. Permanent conditions are contained before temporary ones.

4. The conditions directly regulating the contract implementation process are placed before the so-called "administrative" provisions.

5. Irrelevant information should be ignored.

1. Location of general and specific provisions.

The introductory part contains the most general provisions, including: the name of the contract, information about the time and place of the conclusion of the agreement, information about the persons participating in the contract, as well as the expression of the mutual will of the counterparties to conclude the contract.

The name of the contract should reflect the main content of the document, be concise, clearly and clearly formulated. The need to name a document is not caused by regulatory requirements: first of all, the contract must be distinguished from other documents (certificates, orders, agreements, protocols, etc.), first of all by name. For the relationship between the parties to the contract, its name is not important, therefore it is sufficient to indicate the type of document (contract) and the type (type) of the contract itself: sales contract, loan contract, supply contract, etc.

In most cases, the time of the operation is determined by the calendar date, which must contain at least three components: day, month and year.

The place of conclusion of the contract is usually determined by reference to some settlement.

In the composition of information about counterparties, general and specific information can be distinguished, which are located accordingly in the text of the contract: the most general information is given at the beginning of the text (introductory part), and specific information - at the end of the contract (in the final clauses).

The introductory part of the contract should contain a minimum of information about the counterparties. This means that here you can limit yourself to the abbreviated names of the parties, indicating their contractual roles (supplier, buyer, etc.).

Additional, specific information about the persons participating in the contract is recommended to be placed in the final part of the contract. Here you can specify the full names of counterparties, their addresses, bank details, contact telephone and fax numbers, names and powers of representatives, as well as other information. At the same time, the brand names used must be indicated in exact accordance with the full and abbreviated names provided for in the founding documents.

Example.

 

SUPPLY AGREEMENT

Dnipropetrovsk on September 1, 2005

SUPPLIER: "Alfa" LLC and

BUYER: OJSC "Gamma"

hereby agreed: ...

12. ADDRESSES OF THE PARTIES

Alpha Limited Liability Company: Dnipropetrovsk , 49000, st. Portova, 5, office 15;

Open joint-stock company "Gamma": Dnipropetrovsk , 49000, str. Portova, 5, office 3.

13. SIGNATURES

On behalf of the Supplier:

______________

Director Ivanov I.I.,

acting on the basis of the Charter

On behalf of the Buyer:

______________

Director P.P. Petrov,

acting on the basis of the Charter

 

2. Location of conditions by degree of importance.

As already mentioned, more important conditions are contained before less important ones. Thus, the provision that the contract is drawn up in two copies or the contract can be changed by agreement of the parties (less important terms) is illogically placed before the terms about the subject and object of the contract (more important terms).

3. Permanent and temporary terms of the contract

It is recommended to place the permanent terms of the contract before the temporary ones.

Example.

 

3. PRICE OF THE GOODS

3.1. The price of the product is 100 hryvnias per unit. (Permanent condition)

3.2. In the period from January 1 to 7, the price of the product will be 90 hryvnias per unit, if:

3.2.1. The buyer will purchase at least 40 units of the product and

3.2.2. The buyer will pay for the product in full. (Temporary condition)

 

4. Placement of administrative regulations.

"Administrative" provisions mean the terms of the contract, which regulate the relations of the parties arising from the breach of the contract. These provisions do not provide answers to traditional contractual questions: who will receive what, how much, where and when after the contract is executed. On the contrary, administrative provisions indicate what will happen if the obligation is not fulfilled. This category includes, in particular, conditions on the liability of counterparties; provisions on the release of the parties from liability; rules on the procedure for resolving disputes related to the contract.

Since the administrative provisions depend on the terms constituting the essence of the contract and derive from the latter, the administrative provisions should be placed under the main terms. Reverse placement of contractual terms seems illogical, and a contract that begins with the liability of the counterparties will look like an instrument of intimidation, rather than a civil law document.

5. Exclusion of inappropriate information

Any word and expression must have meaning for counterparties. That is why inappropriate information should be ignored. In other words, all unnecessary words and phrases should be removed from the text.

Let's analyze the following fragment of the contract:

 

SUPPLY AGREEMENT

Dnipropetrovsk is effective from 01.09. 2005 year

Limited Liability Company "Alfa" (ToV "Alfa"), hereinafter referred to as "Supplier", in the person of the General Director, Doctor of Historical Sciences Ivanov Ivan Ivanovich, operating on the basis of the Charter, as well as on the basis of the license for wholesale trade in petroleum products No. 441111, issued by the State Oil and Chemical Concern, on the one hand, and

Open joint-stock company "Gamma", hereinafter referred to as "Purchaser", in the person of the director Petrov Petro Petrovych, master of sports in basketball, operating on the basis of the Charter, on the other hand, was drawn up, duly signed, sealed and concluded on 07.10.2009 . This Agreement is about the following...

 

In addition to the not quite successful presentation of information, the given fragment contains information that is not directly related to the contract: the academic degree of the representative of the supplier, the full and abbreviated name of the supplier, the sports title of the representative of the buyer, an outline of the procedure for the preparation, signing, sealing and entry into force of the contract.

Let's edit this fragment:

a) exclude the word "valid" from the designation of the date;

b) put complete information about the supplier and the buyer in the section "Legal status and addresses of the parties";

c) exclude mentions of the academic degree of the representative of the supplier and the sports title of the representative of the buyer;

d) exclude the expression on the one hand, on the other hand;

e) instead of a story about the procedure for preparing, signing and sealing the contract, we will only note that the contract has been concluded.

As a result, we will receive the following fragments of the contract:

 

SUPPLY AGREEMENT

Dnipropetrovsk on September 1, 2005

SUPPLIER: "Alfa" LLC and

BUYER: OJSC "Gamma"

concluded this agreement on the following ...

8. LEGAL STATUS AND ADDRESSES OF THE PARTIES

SUPPLIER: "Alfa" Limited Liability Company

Dnipropetrovsk , 49000, str. Portova, 5, office 15;

IN___________

y/y _________________, in _______________, code ______, city of Dnipropetrovsk , 49000, str. Comintern, 32.

BUYER: Open joint-stock company "Gamma"

Dnipropetrovsk , 49000, str. Portova, 5, office 3.

IN___________

y/y _________________, in _______________, code ______, city of Dnipropetrovsk , 49000, str. Komsomolska, 52.

9. SIGNATURES

On behalf of the Supplier:

______________

Director Ivanov I.I.,

acting on the basis of the Charter

On behalf of the Buyer:

______________

Director P.P. Petrov,

acting on the basis of the Charter

 

In a huge number of bilateral contracts, as in the given example, there are clearly inappropriate phrases on the one hand, on the other hand, on the third hand , etc. In a contract between two persons, it is already clear which side the counterparties are on, so these unnecessary expressions can be deleted.

 

2.3. Language and stylistic recommendations.

 

A contract is an act of will that was expressed in a legal form and is intended to record, on the one hand, the occurrence of an obligation from the will of its participants, and on the other hand, the content of a civil-law relationship generated by the will of these participants. With the help of words and expressions that make up the content of the written document, the will of the counterparties is directly expressed externally, materialized. And the following interpretation of the contractual provisions will be primarily based on the literal meaning of the words and expressions contained in the document.

1. Used terminology

One of the main reasons for disagreements that arise between counterparties in the interpretation of contracts and the subsequent resolution of disputes is the violation of the rules for the use of terms. A term (from the Latin "terminus" - limit, border) is a concept expressed by a word, a word that is the name of a clearly defined concept. Thus, in relation to the contract, the term is a word or word combination that denotes (reveals) a strictly defined concept and is characterized by ambiguity within the contract.

When writing contracts, it is recommended to use the following rules for the use of terms.

A. The terms used in the contract must be unambiguous.

The use of ambiguous words leads to a false identification of different opinions (conditions of the contract). Ambiguity implies the use of the same term in the same sense:

a) one term can mean only one concept and

b) one concept used in the contract should be characterized by only one term.

Problems with compliance with this rule often arise due to the compilers' desire for so-called "elegant diversity". It is implied that the persons preparing the document resort to polysemy (multiple meanings of words), which is expressed in the use of homonyms and synonyms. As a result, concepts are used in the contract that are mixed, which leads to errors in reasoning and disputes in the interpretation of the contract.

When the same thing can be called several words, only one of them should be used in the contract. And the golden rule of writing should be this: never change terminology unless you want to change the meaning, and always change the words if you want to change the meaning.

In the case, for example, of a requirement for the seller to hand over the goods of higher quality , the term high quality may be used in the text not as a synonym of the first word combination, but to indicate a completely different property of the goods.

2. The terms must be clear and understandable, that is, accessible to understanding.

For example, it is not possible to understand for sure what the design of a product is beautiful and aesthetically perceived by intelligent people .

A few more examples.

1. The supplier guarantees:

1.1. The supplied equipment and the technological process, automation and mechanization correspond to the highest achievements of world technology and meet the highest standards that exist for this type of equipment until the moment of delivery.

1.2. High-quality materials used for the manufacture of equipment, impeccable processing and high-quality technical execution and assembly.

2.1. The intermediary company undertakes:

a) ...

b) ...

c) to guarantee the mutual release of goods according to the agreed nomenclature in cases where the Buyer is in contractual relations with the manufacturing enterprise and the latter violates its supply obligations;

2.2. The buyer undertakes:

a) ...

b) timely return the mutually received goods;

In this case, we are not talking about the clarity and clarity of the terms used.

3. Terminology of the contract should be formed using simple commonly used words and phrases.

Yes, the words basis, essence are more understandable than quintessence. When choosing between the phrases ad hoc and for each specific case, preference should be given to the last and. etc.

Meanwhile, while observing this rule, we recommend that compilers do not replace legal terminology with words and expressions used in everyday life. For example, you should not use the word bring , etc., instead of the term put .

4. The terms must be specific.

If the contract is about a car, it is not necessary to refer to it abstractly as a vehicle or a land vehicle. In the supply contract , gasoline A-92 should not be referred to as a petroleum product produced according to GOST ... etc.

5. Special terms must be used in the contract only in the sense in which they are used in the relevant special field.

In this case, we are talking about the fact that it is unacceptable to use special terms in a sense that is not provided for by the relevant regulatory or other acts or practice. For example, the term steel time, which means the period of time during which the carrier provides and holds the vessel under loading or unloading without additional payments to the freight, should not be used as an indication of the time for the transportation of steel.

6. Abbreviations used must be deciphered in the text of the contract.

Otherwise, a noun formed from the initial letters of words may cause misunderstandings between counterparties and be subject to additional interpretation in court.

7. The contract should not use:

a) abbreviated words (for example, abbreviation p/p - in the sense of prepayment or in order; bnz - in the sense of benzene or gasoline);

b) long phrases, if available, are replaced by words or short phrases (compare: in the event that ... - if ...; is responsible for non-fulfillment and improper fulfillment of an obligation - is responsible for breach of obligation; during a period of time in ... - during ... );

c) outdated words and terms (for example: if, when, thin (meaning bad );

d) outdated names (Leningrad, Byelorussian SSR);

e) the terminology of profanity and colloquial speech, as well as expressive forms of colloquial speech (for example: to throw - in the sense of not paying; to understand - to bring to responsibility; to be angry - to implement, cool - higher; hack - low-quality work);

e) foreign language borrowings in the presence of equivalent words and terms in the Ukrainian language (domicile - location; underwriter - insurer);

g) stamps (people in white coats, black gold, harvest front);

g) clericalisms, pompous words and phrases (pay attention to the decision ..., if there will be a delay from the schedule ...; swearing an obligation, in the face of the strictest responsibility; everywhere and everywhere everyone and everyone is obliged);

h) terminology inherent in criminal or administrative law (a person who has violated an obligation should not be called a criminal or an offender in the text; and the obligation to refrain from any actions is a deprivation of the right to engage in a certain activity);

i) phraseological turns (to work with the sleeves rolled up, the lion's share). As an exception, phraseological turns can be used as units of a terminological nature (black market, live weight, live queue);

j) repeated words and expressions. It is implied that the contract should not be full of:

- Permanent confirmation of mutual agreement (reached an agreement, agreed, mutually interested, agreed);

- Permanent conditions (for example, the phrase provided that the counterparty fulfills all its obligations in due order and the terms provided for in this contract should not be mentioned in every clause);

- Endless referrals (within the established terms, in the manner stipulated by this contract, in the cases mentioned above).

 

2.4. Some stylistic rules for writing contracts

The contract as a business document should have an appropriate writing style, different from the general literary style. Some of the necessary rules are listed below.

1. The contract must consist of proposals that contain an indication of the actions of a specific person.

This rule is best met by two-syllable sentences, because one-syllable sentences are characterized by the ability to single out and emphasize one thing (the action or its performer) as the most important in the sentence. The use of infinitive, indefinite-personal, generalized-personal and impersonal sentences, from which it is not possible to determine a specific actor, should be avoided.

For example, it is necessary to prove from the provision on the facts of making payments (an impersonal offer) that no one's rights or obligations arise; the action must take place, as it were, by itself outside of its relation to the actor. In particular, the circle of persons who must prove the facts of making payments is not defined.

This proposal will become definite, which does not cause disagreements, if you turn it into a two-fold proposal with an indication of a specific actor:

The Buyer is obliged to provide the Supplier with evidence of debiting money from the Buyer's bank account.

Constructions close in content are formed by active and passive turns, for example:

The parties concluded this agreement on the following ...

This agreement is concluded by the parties on the following ...

The differences between them are as follows: in the first construction (valid turnover) the producer of the action (the party) is emphasized, in the second (passive turnover) - the object of the action (agreement). Since, by virtue of a contractual obligation, one person performs duties, and the other has rights, the contract must be written in real terms. It is impossible to completely avoid the use of passive inflections, because the language is arranged in this way, but, nevertheless, you should strive for it. The use of passive inflections is possible in cases where the action itself comes to the fore, regardless of its implementer. At the same time, the obliged (authorized) person can be:

a) unknown and unimportant:

The date of delivery is determined by the stamp of the railway station "Vasyuki" on the railway waybill;

b) obvious:

The buyer is obliged to pay the price of the goods to the supplier. Payment is made within 10 days from the date of delivery;

The use of the passive voice in other cases, as a rule, entails differences in interpretation. A typical example of this is a phrase borrowed by counterparties from the Civil Code:

The contract is subject to registration in accordance with the procedure established by law.

This structure of the proposal allows several assumptions regarding the obligation to register the contract:

a) it is the duty of one of the counterparties;

b) it is the duty of all counterparties;

c) this is the duty of a body authorized by law.

The considered conditions will not cause disagreements if they are stated as follows:

The buyer is obliged to register this contract ...

The cases of incorrect presentation of contractual terms are not exhausted by the given examples. For illustration, we can compare the following formulations, the first of which is unsuccessful:

No payment if the account is seized - the Buyer has the right to withhold payment if the Supplier's account is seized;

To load the goods, it is necessary to prepare the vessel for acceptance - the Supplier undertakes to load the goods on the vessel after the Buyer prepares the vessel for acceptance ...;

It is not possible to pay for a product that does not satisfy ... - The buyer has the right to refuse to pay for a product that does not satisfy ...

In conclusion, we will quote a rather funny phrase, borrowed from one contract:

The piglet must be healthy.

Counterparts, instead of entrusting the poor animal with the responsibility of maintaining its own health, should write:

The seller is obliged to hand over the piglet to a healthy one, i.e....

2. The rights and obligations of the counterparties must be clearly defined in the contract.

Obligations of counterparties are usually expressed by the verbs must, must, rights - by the verbs can, has the right. Prohibitory conditions are formed with the help of the words prohibited, not allowed, has no right, not able, can't. Using other verbs can lead to misunderstandings and arguments. In particular, you should not use conditional and imperative verbs and verbs expressing desire, expectation, assumption, advice, interest, etc.: it is desirable that; it would be better if ...: it is expected that; it is assumed that; trace - not trace; worth - not worth; required - not required; interested in...

In many contractual provisions, third-person verbs are also used to indicate the obligations of the counterparties: the buyer conducts a quality check of the product to confirm its compliance with the contractual conditions within a month ...; the supplier ships the goods in batches ...; product quality control is carried out by an independent expert organization...

It is not clear from this construction of proposals whether the buyer is obliged to conduct a quality check or it is his right; whether the supplier must ship the goods in batches or it is at his discretion; How is the third party (expert organization) bound by the contract? Or maybe the above wording simply records the process of performance of contractual obligations by counterparties? It seems that the questions that have arisen will remove the statement of the considered provisions in another way:

The buyer is obliged to check the quality of the product to confirm its compliance with the contractual conditions within ...

The supplier has the right to ship the goods in batches...

The buyer has the right to engage an independent expert organization for product quality control...

The use of third-person verbs is permissible in the contract, if the counterparty does not have any rights or obligations, but simply states a certain fact.

3. Action verbs must be used in the contract: accept, pay, deliver, deliver, etc.

It is not necessary to abuse constructions consisting of a verb and a verb-based noun, since they do not express the direct obligations of the counterparties, but only burden the text and give it a clerical character:

The buyer is obliged to pay for the delivered goods...

The supplier must load the goods...

The buyer should organize the drawing up of the act ...

It is better to write:

The buyer is obliged to pay for the delivered goods...

The supplier undertakes to load the goods ...

The buyer must draw up a deed ...

4. Affirmative proposals should prevail in the contract.

If the designation of the action can be expressed in an affirmative and negative form, preference should be given to the first.

Yes, instead of negative verbs in sentences

If the supplier does not follow the requirements ...

it is better to use positive forms:

If the supplier violates the requirements ...

Several objections in one sentence should also be avoided:

The buyer does not have the right to appoint persons who do not have a higher education to the commission for accepting the goods;

It is better to resort to the affirmative construction:

The buyer has the right to appoint only persons with higher education to the commission for accepting the goods.

5. The presentation of the contractual terms should take place mainly in the future tense , since the document is a "plan" of the actions of the counterparties and describes the actions to be performed in the future. The use of past tense verbs is allowed only to describe actions that have already been performed.

When the agreement has only been concluded and the obligations have not yet been fulfilled, it is not necessary to write that the Seller sold and the Buyer bought; The supplier delivered, and the buyer accepted the goods , etc.

It is better to specify that counterparties undertake to sell, deliver, accept, etc.

6. When setting out the contractual terms, parallelism of structural elements must be observed, which means the same direct order of words with the coincidence of verb forms when constructing the same structural units.

If the first paragraph of the section consists only of the names of nouns, then the following paragraphs should be constructed in a similar way:

3.1. Rights of the Supplier: ...

3.2. Responsibilities of the supplier: ...

3.3. Buyer's rights: ...

3.4. Obligations of the buyer: ...

Parallelism will be broken if verbs are introduced in some of the following clauses:

3.1. Buyer's rights: ...

3.2. The supplier is obliged to: ...

3.3. The buyer has the right to: ...

If the introductory part (an independent structural unit) does not represent a complete sentence, each of the enumerations must complete the sentence started by the introductory part. At the same time, none of the lists should be an independent offer.

7. Short, simple narrative sentences should prevail in the contract, which are usually easy to read and understand.

Long clauses often make it difficult to interpret the contract.

Here are some techniques that lead to the use of simple sentences:

1) Only one thought or expression of will should be expressed in each sentence. For this purpose, complex proposals must be divided into several simple ones.

2) It is necessary to exclude unnecessary words and inappropriate information from the proposal.

3) Shorter exceptions can be used instead of a long list of enumerations.

8. The clear presentation of information is facilitated by the use of short, compact, easily readable paragraphs (clauses) in the contract.

In contrast to artistic texts designed for emotional perception, which are characterized by an accentual and expressive division into paragraphs, when writing contracts, a logical and meaningful division into paragraphs is used.

We compare two methods of presentation in the section "Irresistible force". In the first example, the entire section is one paragraph:

The party is released from responsibility for partial or complete non-fulfillment or improper fulfillment of the obligation under this contract, if it proves that the non-fulfillment or improper fulfillment was the result of force majeure, that is, extraordinary and unavoidable under the given circumstances, which the party could not have expected and foreseen, which include natural phenomena, acts of war, acts and other decisions of state authorities, which prohibit or limit payments or commission operations with the Goods. In the event of force majeure, the term of fulfillment of obligations increases according to the time during which the relevant circumstances will exist. The party for whom it is impossible to fulfill the obligations under the contract as a result of the above-mentioned force majeure circumstances is obliged to immediately inform the other party in writing about the occurrence and termination of these circumstances. If the force majeure event continues for more than 60 days, either party may terminate the contract by giving 20 days' notice to the other party, and neither party shall be entitled to claim damages. Proof of force majeure is a certificate issued by the Chamber of Commerce.

As you can see, the text, which is not broken down into paragraphs (clauses), is difficult to perceive: the logical and semantic connections between individual proposals (contract provisions) are not caught.

The same text, after dividing it into short structural units, will look like this:

5.1. The party is released from responsibility for partial or complete non-fulfillment or improper fulfillment of the obligation under this contract, if it proves that the non-fulfillment or improper fulfillment was the result of force majeure.

5.2. Force majeure means extraordinary and unavoidable circumstances under the given conditions, which the party could not have expected or foreseen.

5.3. Such circumstances include:

5.3.1. Natural phenomena;

5.3.2. Military operations;

5.3.3. Acts and other decisions of state bodies that prohibit or restrict payments or other transactions with the Goods.

5.4. In the event of force majeure, the term of fulfillment of obligations increases according to the time during which the relevant circumstances will exist.

5.5. The party for whom it is impossible to fulfill the obligations under the contract as a result of the above-mentioned force majeure circumstances is obliged to immediately inform the other party in writing about the occurrence and termination of these circumstances.

5.6. If the circumstances of force majeure continue to exist beyond