DRAFTING A COMMERCIAL CONTRACT

Gap-fill exercise

Fill in all the gaps, then press "Check" to check your answers. Use the "Hint" button to get a free letter if an answer is giving you trouble. You can also click on the "[?]" button to get a clue. Note that you will lose points if you ask for hints or clues!
In the U.K. solicitors receive extensive training on the preferred way to up a commercial contract. This training takes place first of all at university as a component of the compulsory Legal Practice Course and is continued during the two-year training period with a law . After qualification, knowledge is reinforced during the course of working or, more correctly, as a solicitor. This training comes in the shape of compulsory professional development courses. By and large, the advice on drafting commercial conn-acts is the same from all professional training providers.
A major rule of drafting in the twenty-first century seems to be to move away from the style used by previous generations of lawyers. Most law firms have a check list of undesirable words, phrases or styles of writing that solicitors should avoid. For example, when using a which is a contract drafted previously and stored as a model for future contracts of the same nature, a solicitor should be prepared to modernise it to some extent before use. Part of this process, for example, is to avoid the habit of saying things twice. It is no longer necessary to use phrases such as 'cease and desist’, or ‘null and ', as both words are interpreted as having the same meaning. Similarly, solicitors are now encouraged to think of archaic terms such as ‘heretofore' or ‘aforementioned’ as faintly ridiculous. Even very common phrases containing this type of word are disappearing from contracts. For example, at the start of a licence agreement it would be traditional to use a phrase such as ‘The Licensor grants the Licensee the right to ....’. This archaic word is not necessary as the purpose of the licence document is apparent to anyone who reads it.
As well as guidance on the style of English to be used in modern commercial agreements, solicitors are also reminded when drafting to bear in mind the purpose of each section of the contract and not to become complacent about the general or 'boilerplate' provisions. For example, the parties to an agreement will usually want to ensure that their respective confidential information is protected. If a non- undertaking is put in place, the solicitor must be clear on what constitutes the ‘confidential information’ in question. Similarly, a diligent lawyer should check that a force majeure clause is not too wide in its scope and, if appropriate, includes an obligation for the affected party to its loss, which means taking reasonable steps to keep that loss to a minimum.
To some extent the layout of a contract has become more flexible as part of this process. For example, the section is included in an agreement to give specific meanings to particular words and is used to avoid repetition within the body of the contract. However, it may be better to include this information as the first to the contract, which is a document attached to the contract (and incorporated in it), rather than having it as the first operative as is the tradition.