MODULE 2[A]: GENERAL WRITING
PRINCIPLES APPLICABLE TO
DRAFTING OF CONTRACTS
1. INITIATING THE PROCESS OF DRAFTING
Before straight away jumping to drafting a contractual document, it is very important to
understand and make sure what the contract is about, what is the nature of the contract,
what is required by the parties, what is its term and what is its mode of completion. In
simple terms, a general idea about the nature of the contract is vital before starting to
draft the same.
This can be achieved by outlining the general view of the contract and highlighting what
the parties actually want, and then putting up words to reach to that want.
The following points must be adhered to before drafting a final version of the contractual
document:
1. Write down multiple drafts of the contract. Use comparatively different language and
method in each draft. Try to get all the relevant details of the contract in the first draft and then
re-read the same. Re- Reading would help you to analyze what went wrong or what are the
missing points that must be covered, etc. Move ahead with the final draft only when you are
super sure that the draft does not leave any relevant details. Some of the relevant details include
proposal, terms of acceptance, manner of proposal and manner of acceptance, dates of proposal
and acceptance, mode of consideration, value of consideration, rights and duties of the parties,
fairness of the terms, duration of the contract, termination, revocation, breach, terms of
revocation, terms of breach, associated performance, burden of performance and subsequent
damages, jurisdiction of the courts, etc.
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2. The language of the terms should be clear, simple and businesslike.Over Legalese
Language and verbosity must be avoided. Technical terms should be used at required places and
their associated meanings must also be provided.
3. A particular clause must do a particular thing, and not the others. This means that the
clauses must be specific and to the point. For example if a particular clause talks about the
manner of making offer, it should be limited to that. Other purposes like revocation of offer,
mode of acceptance etc should not be attached to it. They must be kept in other simple clauses.
Make each clause do just one thing, precisely AND clearly!
4. Check for certain specific ambiguities. For example Make sure that when you referred a
person or a thing by a specific name at one place, you use the same name at other places too and
not otherwise. Also make sure that a particular term is used to address merely a particular thing
and not multiple objects.
5. Thoroughly check for ANY contradicting terms in your contract, otherwise they shall defeat
its very purpose.
6. Always get your draft reviewed neutrally by another person to get a range of points where
the reader can misconstrue a point.
WHY IS IT IMPORTANT TO HAVE MULTIPLE DRAFTS?
Always try to write more than one draft of any given legal piece. Let the first draft be creative,
thorough and imperfect. Include everything you think necessary to the piece and all things that
you think might be useful. Then use second, third, fourth and other drafts for rewriting,
revising, and polishing.
2. REVISING THE FINAL DRAFT
Revising is the most important aspect of getting the final draft of the Contract. It comes
after rewriting the tentative drafts multiple times.
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However, there must be two caveats associated with revising the draft:
1. One must not revise while writing the draft, because it even slows down the process
and does not even serve the purpose.
2. Revising must be done at stages. No contract should be revised on a single go. Trying
to revise the entire contract in a single go would prove to be exhausting and non-
efficient.
2.1. Points to keep in mind while Revising the Draft
2.1.1. Accuracy:To Ensure Accuracy, the following questions must be asked to self:
a. Is the content accurately stated?
b. Could any points be misunderstood because of ambiguity?
c. Are irrelevant facts or other irrelevant information excluded?
d. Are terms of art used correctly?
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e. Are key terms used correctly?
f. Are paraphrases accurate?
g. Are names of parties and their status correct?
h. Are the citations accurate?
2.1.2. Organization:
a. Are paragraphs internally logical?
b. Are there clear and precise transitions between paragraphs and sentences?
2.1.3. Readability:
a. Are subjects and verbs close together?
b. Are unnecessary modifiers eliminated?
c. Are sentences not overly long?
d. Are lists clearly structured?
e. Are unnecessary prepositional phrases eliminated?
f. Is the text generally concise?
2.1.4. Style:
a. Is style consistent?
b. Is the tone and level of formality appropriate and consistent?
2.1.5. Other points:
a. General: No archaic terms (e.g., hereinafter, hereby)
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b. No legal pairs (e.g. good and sufficient)
c. No Latin or foreign expressions (e.g., bona fide)
d. Plain English, not legalese.
3. BASIC ESSENTIALS THAT SHOULD BE PRESENT IN
EVERY CONTRACTUAL DRAFT
A rough and universal draft for agreement must be divided into the following parts and must
have at least the following terms:
3.1. Establishing an Agreement, Rights and Obligations, and Remedies
3.1.1. Establishing an Agreement: Details and Terms of the following elements must be
included in draft at the very beginning to establish an agreement between the parties:
(i) Details of Competent Parties
(ii) Subject Matter
(iii) Legal Consideration
(iv) Mutual Agreement
(v) Mutual Obligation
3.1.2. Remedies: The terms and details describing a detailed course of action for seeking
remedies in case of breach of contract must then be unequivocally stated in the draft. Any of the
following remedies and damages may be seeked for. However the terms of each shall be
unequivocally stated.
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(i) Damages
- Direct Damages
- Consequential Damages
- Punitive Damages
(ii) Liquidated Damages
(iii) Specific Performance
(iv) Rescission and Restitution
(v) Reformation
(vi) Limitations and Waivers
(vii) Voidability
3.2. Understanding and Planning the Problems of Future: Interpretative
Provisions
The Contract must provide the details of the following provisions to safeguard the parties in
cases of breach, termination or Frustration of a contract:
3.2.1. Provisions for Termination
3.2.2. Provisions for Frustration
3.2.3. Risk Allocation including Inevitable Accidents and Act of God
Sample Force Majeure Clause:
Neither party shall be liable in damages or have the right to terminate this Agreement for any
delay or default in performing hereunder if such delay or default is caused by conditions beyond
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its control including, but not limited to Acts of God, Government restrictions, wars, insurrections
and/or any other cause beyond the reasonable control of the party whose performance is
affected.
3.2.4. Clauses addressing the possibility of Future Litigations
This must include the jurisdiction of courts, ADR Techniques and the Powers of the parties to
approach the court of competent jurisdiction.
The following questions may be asked to oneself in order to ascertain whether the draft is full-
fledged or not, that is to say a contract MUST contain the following clauses to say the least:
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