A contract should read like instructions for building furniture - or an aircraft carrier

This week’s musings on tech contracts …

Here’s a proposition: we should NOT seek shorter or simpler contracts where those goals contradict our higher priority: CLARITY. Brevity, simplicity, and clarity overlap, but they’re not the same.

Clarity does often lead to shorter and simpler contracts. In fact, good writing itself leads to shorter and simpler stuff – except in a few rarified fields, like philosophy and fiction, where complex language can occupy a place of honor. (Ever read German Romantic philosophers? And don’t get me started on Moby Dick and its ilk.)

This week's musings on tech contracts: A contract should read like instructions for building furniture – or an aircraft carrier

Clarity outranks brevity and simplicity, thanks to deal complexity

The problem with giving brevity and simplicity top priority? Some transactions are complex. Applying a short, simple contract to a 95-step deal, with 15 events that could redirect everyone’s duties, leads to a useless contract.

We need simplicity and brevity but should send them off marching in the right direction. Brevity should give way to coverage of the important issues, even if that’s a very long list. And simplicity should give way to the complexity of the deal itself.

Also, brevity and simplicity should play larger roles in first drafts than in redlines. Nitpicking the other side’s language had high odds of gumming up the works. If it’s clear but overlong or unnecessarily complex, maybe just leave it alone.

The best roles for brevity and simplicity

On the other hand, we should communicate each thought with as few words as possible. We may have lots of concepts, but we can still shoot for simplicity in describing each. As your English teacher said, many short sentences often serve better than one long one.

The main caveat (fun lawyer word) to the short sentence rule, IMHO, involves lists. I have no problem with even a page-long “sentence” if it’s broken into a bulleted list. “Customer shall store the Data:
“(a) in a locked server room requiring two-factor authentication to enter;
“(b) on a computer operating software that …
“(c) – (z) etc., etc., etc.”

Obviously, we also do best with familiar vocabulary. Terms like “heretofore,” “inter alia,” and “bequeath” rarely if ever serve better than their modern alternatives. Nor do we benefit from longer-than-necessary phrases, like “subsequent to” (for “before”), “during the course of” (for “during”), and my personal un-favorite, despite my occasional slips into using it, “in the event that” (for “if”).

Legalese gets back in there

On the other hand, I recommend terms with well-established legal meanings, even if they’re not common. Terms like “proximate cause,” “warrants,” “material breach,” “assignment,” and “consideration” generally reduce contract length and increase clarity. That’s because they tap into hundreds of pages of decisions and even statutes defining them. And contrary to common belief, you don’t need 3 years of law school to learn them.

All in all, it’s best not to say, “Oh, legalese: delete it.” Think about it. Often it needs to go. Often it needs editing. Someties it should stay.

I did a short online talk about this on August 13, and I thought it would help to record and expand on some key ideas here.

Thank you to Pixabay.com for great, free stock images!