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Top Ten Tips in Drafting and Negotiating Contract (Part 2)

13/6/18 Top Ten Tips in Drafting and Negotiating Contract (Part 2)


2.  Clear Contract Prose

Use clear language in your contracts. Any given English-language business contract will likely be riddled with the deficient usages that characterize traditional contract language—flagrant archaisms, redundancy, botched use of verbs, and so on. Many lawyers in the U.S. and England are wedded to traditional drafting, and some drafters in other jurisdictions seem to relish the most archaic and florid elements of traditional language. But readers and, most importantly, courts in other countries might respond with some combination of bewilderment and hostility.

3.  Common Law Versus Civil Law

In the civil-law tradition, contracts are shorter than their common-law counterparts and attempt to address fewer contingencies. That’s presumably because civil-law codes address issues that in common-law systems are routinely covered in contracts. The notion that there’s a greater risk of litigation in common-law countries might also have something to do with it.
But regardl2ess of tradition, Anglo-American law firms have brought their style of practice, including Anglo-American-style transaction documentation, to civil-law countries. As a result, the distinction between the two types of contracts has blurred. In fact, promiscuous copy-and-pasting results in concepts appropriate only under common law—for example, the requirement that a contract be supported by “consideration”—finding their way into civil-law contracts.

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