From the lexicological point of view isolated† words† and phrases mean† very little.† In context they
mean a great deal, and in the special context of† contractual† undertakings† they mean everything.† Contract† English†
is† a prose organised according to plan.
And it† includes,† without limitation,† the right but not the obligation to select words from a wide variety†
of† verbal implements and write clearly, accurately, and/or with style.
Two phases of writing contracts exist:† in the† first, we react to† proposed contracts drafted by somebody else,† and
in the second,† which presents greater challenge,† we compose† our own.
A good contract reads like a classic story.† It narrates, in orderly sequence,† that one part should do this
and another should do that,† and perhaps† if† certain† events† occur,† the outcome will be changed. All of the rate cards charts, and other
reference material ought to be ticked off one† after another according to the sense of it. Tables and figures, code
words and mystical references are† almost† insulting† unless† organised and†† defined.† Without†
organisation† they† baffle, without definition they entrap.
In strong stance one can send back the offending document and request a substitute document in† comprehensible† English. Otherwise a series of questions may be put by
letter,† and the replies often will have contractual force if the† document† is later contested.
A sampling of contract phrases
My observations about English so far have been general in nature. Now it appears†
logical† to† examine† the† examples† of favourite contract† phrases,† which† will help ease the way to
fuller examination of entire negotiations and contracts. a full glossary is beyond reach but in what follows there is a listing of words and phrases that
turn up in† great† many† documents, with comments on each one. The words and phrases are presented in plausible contract sequence, not alphabetically.
"Whereas" Everyman's idea of how a contract begins.† Some lawyers
dislike "Whereas" and use recitation clauses so marked to distinguish them from the text in the†
contract.† There† the real issue lies;† one must be careful about mixing up recitals of history with what is actually being agreed on. For example,† it would be folly to write: "Whereas
A admits owing B $10,000..." because the† admission† may† later† haunt† one,† especially if drafts are never signed and
the debt be disputed.† Rather less damaging would be:
"Whereas the† parties have engaged†† in†† a†† series†† of† transactions†† resulting† in†† dispute†
over† accounting† between them..."
On the whole "Whereas" is acceptable, but what follows it needs particular care.
"It is understood and agreed" On the one hand, it usually adds nothing, because every clause in the contract is
"understood and agreed" or it would not be written into it.† On the† other† hand, what it adds is an
implication that other clauses are not backed up by this phrase: by including the one you exclude the other. ďIt is understood and agreedĒ ought to be banished.
"Hereinafter" A† decent† enough little word doing the job of six ("Referred to later in
this† document").† "Hereinafter" frequently sets† up abbreviated names for the contract
"Knightsbridge International† Drapes and Fishmonger,† Ltd† (hereinafter "Knightsbridge").
"Including Without Limitation" It is useful and at† times essential
phrase.† Earlier† I've noted that mentioning certain things may exclude others by implication. Thus,
"You may† assign† your exclusive British and Commonwealth rights"
suggests that you may not assign other rights assuming you have any. Such pitfalls may be avoided by phrasing such as:
"You may† assign† any† and† all† your† rights† including without limitation your exclusive† British†† and Commonwealth
But why specify any rights if all of them† are† included? Psychology is† the† main†
reason;† people want specific things underscored in†† the†† contracts,†† and†† "Including†† Without
Limitation" indulges this prediction.
"Assignees and† Licensees"† These† are† important† words which acceptability depends on one's
point of view
"Knightsbridge, its assignees and licensees..."
suggests that Knightsbridge may hand you over to somebody else after contracts are signed.†
If you yourself happen to be Knightsbridge, you† will want that particular right and should
use the phrase.
"Without Prejudice" It is a classic. The British use this phrase all by itself,† leaving the reader intrigued.†
"Without Prejudice" to† what† exactly?† Americans† spell† it †out† more elaborately, but† if† you†
stick† to† American† way,† remember "Including Without Limitation",† or you may† accidentally exclude something by
implication.† Legal rights,† for example, are not the same thing as remedies the law† offers† to†
enforce† them. Thus the American might write:
"Without prejudice to any of my existing or future rights or remedies..."
And this leads to another phrase.
"And/or" It† is an essential barbarism.† In the preceding example I've used the
disjunctive "rights or† remedies".† This is not always good enough, and one may run into trouble with
"Knightsbridge or Tefal or either of them shall..."
What about both together?† "Knightsbridge and Tefal", perhaps, followed by "or either".† Occasionally the alternatives become† overwhelming, thus††
and/or†† is†† convenient†† and† generally† accepted, although more detail is better.
"Shall" If one says† "Knightsbridge† and/or† Tefal† shall have..." or††
"will†† have...",† legally† it† should† make† no difference in the case you are consent in
using† one† or† the other. "Shall",† however,† is stronger than "will".
Going from one to another might suggest that one obligation† is† stronger somehow than† another.†
Perhaps,† one's position may determine the choice. "You shall", however is bad form.
"Understanding" It is† a† dangerous† word.† If† you† mean agreement
you† ought† to† say† so.† If† you† view† of† affairs that there is no agreement,† "understanding" as a noun suggests the opposite or comes close to it.†
.it stands,† in fact, as a monument to unsatisfactory compromise.† The† softness of† the word conjures† up†
pleasing† images.† "In† accordance with our understanding..." can be interpreted
in a number of ways.
"Effect" Here† is† a†† little†† word†† which†† uses†† are insufficiently
praised.††† Such†† a†† phrase†† as†† "We†† will produce..."† is inaccurate,†† because†† the† work††
will††† be subcontracted and†† the† promise-maker† technically† defaults. Somebody else does the producing. Why not say "We will produce or cause to be produced..."?† This is in fact often said,† but it jars the ear.† Accordingly "We† will†
effect† production..." highlights the point with greater skill.
"Idea" This word is bad for your own† side† but† helpful against
others.† Ideas as such are not generally protected† by law. If you† submit† something† to† a†
company with any hope of reward you must find better phrasing than "my idea".† Perhaps,
"my format"† or† possibly† "my† property" is more appropriate. Naturally, if you†
can† develop† an† idea† into† a† format† or protectable property,† the† more† ambitious† phrasing†
will be better justified.
"As between us" It is useful,† because people are† always forgetting or†† neglecting†† to† mention† that†
a† great† many interests may† be† involved† in† what† appears† to† be† simple dialogue. "I
reserve control over..." and "You have the final power of decision over..." sound like†
division† of† something into spheres,† but† frequently† "I" am in turn controlled by my investors and "You" - by a foreign
parent company,† making the language of division inaccurate. Neither of us really controls anything, at least ultimately.
Thus† it† will† be† useful† to say, "As between us, I control..." and so on.
"Spanning" Time† periods† are† awkward† things: "...for† a period commencing August,1 and† expiring†
November,15..."† is clumsy; "...from† August,1 to November,15..." is skeletal when informing how long a contract
But† during† particular time† periods† one† may be reporting for work,† for example, three days out of
every five, or doing something else that is within but not completely parallel to the entire time period involved.
A happy solution is the word "Spanning". It goes this way:
"Throughout the period spanning August,1 - November,15 inclusive you will render services†
as† a†† consultant three days out of every five."
It will† be† useful to put "inclusive" at the end for without it you may lose the date, concluding the period being
"Negotiate in Good Faith"† The† negotiators† have† worked until late at night,† all points but one have been worked out, the
contract will never be signed without resolution† of† some particular impasse.† What is there to do?
Agree to "Negotiate in Good Faith" on the disputed point at† later† time. This†
is done frequently,† but† make no mistake about the outcome. The open point remains open. If it happens to be†
vital† you† may have no† contract at all.† "Negotiate in Good Faith" is one of those evasions that must be used sparingly.
At the right time it prevents collapse, at the wrong time it promotes it.
"Confirm" It suggests, of course, that something has been agreed upon before. You are writing now only to
make a record of it. "I write to confirm that you admit† substantial† default† in delivery"
Frequently we encounter it in ordinary correspondence: "Confirming your order", "Confirming the main points of our agreement",
and so on.
"Furnish" It is a handy word which† usefulness† lies† in the avoidance† of worse
alternatives. Suppose you transact to deliver a variety of elements as† a package.
"Deliver"† leaves out, even† though† it† may† well† be implied,† the preliminary purchase or engagement of
these elements, and at the other end it goes† very far in suggesting responsibility for getting the package unscathed
to where it belongs.
Alternatives also† may go wrong,† slightly,† each with its own implications.
Thus† each word misses some important - detail or implies unnecessary things.
"Furnish"† is† sometimes useful when more popular words fall short or go too far. It
has a good professional ring to it as well:
"I agree to furnish all of the elements listed on Exhibit A annexed hereto and made part hereof by incorporation."
Who is† responsible for non-delivery and related questions can be† dealt† with† in† separate†
"Furnish"† avoids jumping the† gun.† It keeps away from what ought to be treated independently but fills up enough space† to†
The word is good value.
"Right but Not† Obligation"† One† of† the† most† splendid phrases
available. Sometimes the† grant† of† particular rights carries with it by implication a duty to exploit them. Authors, for example,† often feel betrayed by their publishes, who
have various rights "but do nothing about them." Royalties decrease as a result; and this situation, whether or not it reflects real
criminality,† is repeated in variety† of† industries† and court cases. Accordingly it well suits the grantee of† rights to make† clear at the very beginning that he may abandon them. This possibility is more appropriately dealt with in† separate clauses reciting the consequences. Still, contracts have been known to†
contain† inconsistent† provisions,† and† preliminary correspondence may† not† even† reach the subject of
A quick phrase helps keep you out of trouble: "The Right but† Not Obligation". Thus,
"We shall have the Right† but† Not† Obligation† to† grant sublicenses in Austria"("But if we fail, we fail").
Even this magic phrase has its limitations† because† good faith may require having a real go to exploiting the rights in
question. Nevertheless "Right but Not Obligation" is useful, so much so†† as† to†
become† incantation† and† be† said† whenever circumstances allow it. I the other side challenges these words, it will††
be† better† to† know† this† at† once† and† work† out alternatives or finish up the negotiations completely.
"Exclusive" Itís importance in contract English is† vast,† and its omission†† creates† difficulties† in†
good† many† informal drafts. Exclusivity as a contract term means that somebody† is -barred
from dealing with others in a specified area. Typically an employment may be exclusive in that the employee† may† not work for† any† one else,† or a license may be exclusive in the sense
that no competing licenses† will† be† issued.
Antitrust problems cluster† around† exclusive †arrangements but they are not all automatically outlawed.
It follows that one ought to specify whether or††† not†† exclusivity†† is†† part††
of†† many transactions. If not,† the† phrase† "nonexclusive"† does† well enough. On† the† other hand,†
if a consultant is to be engaged solely by one company,† or a distributorship awarded to nobody else
except† X,† then† "exclusive"† is† a† word† that deserves recitation. "Exclusive Right but Not Obligation" is an example that combines† two†
phrases† discussed† here.
The† linking of concepts is a† step† in† building† a† vocabulary† of† contract English.
"Solely on† condition that" One of the few phrases that can be
considered better than its short counterparts. Why not just†† "if"? Because† "if"† by† itself† leaves†
open† the possibility of open contingencies:
"If Baker delivers 1,000 barrels I will buy them" is unclear if you will buy them† only† from† Baker.†
Therefore what about "only if"? Sometimes this works out, but not always.
"I will buy 1,000 barrels only if Baker delivers them" is an example† of
"only if" going fuzzy.† One possible meaning is "not more than 1,000 barrels" with
"only" assimilated with the wrong word. Here then a more elaborate phrase is justified.
"I will buy 1,000 barrels solely on condition that† Baker delivers them"
makes everything clear.
"Subject to"† Few† contracts† can do without this phrase. Many promises can be made good only if certain† things†
occur. The right†† procedure†† is†† to†† spell† out† these† plausible impediments to the degree† that† you†
can† reasonably† foresee them.
"We will deliver these subject to our receiving† adequate supplies";
"Our agreement is subject to the laws of Connecticut";
"Subject to circumstances beyond our control ".
Foreign esoteric words
Every now† and then a scholarly phrase becomes accepted in business usage.† "Pro† rate"† and† "pari† passu"†† are†† Latin expressions but concern money.† "Pro rata" proves helpful
when payments are to be in a proportion reflecting earlier† formulas in a† contract.† "Pari† passu" is used when several people
are paid at the same level or time out of a† common† fund.† Latin, however, is not the only source of foreign
phrases in business letters.
"Force majeure"† is a French phrase meaning circumstances beyond one's control.
English itself† has plenty of rare words.† One example is "eschew"; how†
many† times† we† see† people† struggling†† with negatives such† as "and† we† agree not to produce (whatever it is) for a period of X".
The more appropriate phrase would be
"we will eschew production".
But here it should be mentioned† that† not† everyone† can understand such† phrases.†
Therefore rare words should be used only once in a long† while.† Those† who† uses† them† sparingly appears to be
Some words against passive
Until now the† study† of† writing† business† letters† has consisted largely† of†
contract† phrases† accompanied by brief essays evaluating† their† usefulness.† The†† words††
are†† only samplings and are presented mainly to conduce writing business letters in a proper way.† It will be wrong,† however, to bring this list†
to an end without mention of a more general problem that arises in connection with no fixed word pattern at all. It arises, rather from using too
many passives. Such phrases as "The material will be delivered";
"The start date is to be decided";
"The figures must be approved" are obscure ones leaving unsettled who it is that delivers, who
decides,† and who does the approving.† Which side it is to be? Lawsuits† are† the† plausible† outcome†
of† leaving it all unsettled. Passives used in contracts can† destroy† the† whole negotiations. "You† will†
deliver"† is better for it identifies the one who will do delivering.† Certainly,† "must be approved
by us" violates other canons.† "We shall have the right but not the obligation to approve" is
less unfortunate.† There† is† no doubt that passives do not suit business letters,† and if they go all the way through without
adding something like "by† you" or "by us" they are intolerable.† Once in a long while one may find passives
used purposely to leave something† unresolved.† In those circumstances† they† will be in class with "negotiate in
good faith", which I've examined earlier.