Clear Contracts in English: (1) Keep sentences brief
The importance of clear contracts
“WHAT DOES THIS MEAN?”
It’s the nightmare scenario.
You take extreme care in stipulating all conditions, eventualities, consequences, exceptions and even the exceptions to the exceptions. Your clause contains everything the reader could possibly need to know about the background, rights and obligation of the parties.
You check the contract with your local colleagues and they all agree: it’s watertight. You send it off to your British or American client (usually American – your British clients are too polite).
Then, a few days later, you read the comment scrawled in the margin alongside your carefully-worded clause:
“WHAT DOES THIS MEAN?”
A legal culture clash
This scenario is not uncommon. And it is typically caused by a disconnect between what makes a great local-language contract and what makes a great English-language contract. Contract-drafting conventions vary considerably between languages and between jurisdictions. So it is important to take stock of these legal-cultural differences to make your legal writing clearer, less foreign and, ultimately, more reader-friendly in English.
Continental lawyers commonly view cross-border contracts from a purely substantive, comparative law perspective. They rely on accurate legal terminology to express local-law concepts. And while terminology is crucial – of course it is – you should also think about how your reader processes and – may I say it – enjoys your text as a whole. In this sense, you should take a comparative drafting approach.
Failure to respect English-language drafting conventions can create friction. In negotiating your contract, you might find that your British and American clients spend longer trying to simplify and clarify your ideas. This might even feel like a time-wasting tactic on their part. They, on the other hand, might suspect that you are trying to pull the wool over their eyes if they find your writing to be too longwinded, haughty and prone to ambiguity.
Similar issues also arise when procuring translations of your contracts. Many translators whose mother tongue is not English will automatically replicate the long sentence structure, the convoluted word order and the archaic Latin phraseology present in the local-language original. But this has the same effect on the reader. It hinders the client’s (or counterparty’s, or even your own) understanding. And if you provided the reader with the translation, the buck will ultimately stop with you. This is just one of the reasons why entrusting your texts to an experienced, English-mothertongue legal translator is beneficial in the short and long term.
How to draft clearly
In this series of articles, we’ll look at a selection of techniques to make your English-language contracts clear, concise, consistent and – ultimately – reader-friendly.
We’ll draw on examples from jurisdictions as diverse as the Czech Republic, Italy and Spain. Clearly, the languages spoken in those countries are vastly dissimilar. But the similarities between their drafting styles – and how divergent they are from a modern English drafting style – are striking.
In the coming articles we’ll look at issues such as: the use of shall; the importance of a strong verb; and legalese. But today we’ll be concentrating on how long sentence structures affect the reader’s understanding.
Today’s examples come from the Czech Republic and Spain, but we’ll try to present them in a way that makes them fully understandable even to non-speakers of those languages.
Today’s topic: Keep sentences brief
The premise
In many continental European countries, drafting in long, complex sentences isn’t just the norm – it is the expectation, the hallmark of all good legal writing. But in English, this is not the case.
Bryan Garner, one of the preeminent voices on modern contract writing, recommends an average sentence length of 20 words in English legal writing. Research by the American Press Institute goes further. In its 2009 Readers’ Degree of Understanding study, it found as follows:
When the average sentence length is 8 words or fewer – Readers understand 100% of the information.
At 9 to 14 words – Readers understand 90% of the information.
At 15 to 43 words – Readers understand 10% of the information.
Admittedly, this research assessed comprehension of the written press, rather than of legal writing. But while British and American lawyers will be regularly exposed to lengthy, highly-complex sentences (they might not like them!), your contract will likely be read by non-lawyers, too, at some stage. If you’re drafting a consumer contract, it definitely will.
By contrast, drafting in short to medium-length sentences offers three clear advantages:
Most readers scan text rather than read every word. And it is easier to pinpoint key information in brief, simply structured sentences than in sentences that run into several lines.
If you insert various ideas into a single sentence, you will need to use more complex grammatical and lexical structures to join up those ideas. Even if used correctly, they can open the door to ambiguity and misinterpretation by the reader.
Writing in brief sentences encourages you to write in the active voice. This more direct style makes for clearer, unambiguous writing.
Example 1
The following example is taken from a Czech delivery services contract. Long sentences like this one are common in Czech legal writing. But if we replicate the structure in English, we will be keeping the sentence alive for longer than the reader can reasonably digest. The reader might have to re-read the clause to understand the clause’s full ramifications. That is hardly reader-friendly:
Czech provision:
Klient je v zájmu dodržení povinností uložených zákonem č. 477/2001 Sb., o obalech, ve znění pozdějších předpisů (dále jen „zákon o obalech“) povinen informovat ABC o druhu dodávaných obalů a o jejich váze, a to nejméně jedenkrát za kalendářní čtvrtletí, přičemž porušení povinností Klienta dle tohoto odstavce VOTP je vždy podstatným porušením Smlouvy. (53 words)
English provision (replicating long Czech sentence structure):
To comply with its obligations under Act No 477/2001 Sb. on packaging, as amended (the “Packaging Act”), the Client shall inform ABC of the type and weight of the packaging consigned at least once per calendar quarter, with any breach of the Client’s obligations under this paragraph of the T&Cs constituting a material breach of the Agreement. (57 words)
In essence, this clause is actually two provisions in one (an obligation and a consequence). It is more friendly for the reader if we separate these with a full-stop. In one sentence we have the obligation, in the other we have the consequence.
Also consider the contrived structure of “with any breach…constituting”. This structure is necessary if we want to keep the sentence alive. But it lacks a directness that is desirable in English-language contracts. And in the reader’s mind, “constituting” could even apply to the T&Cs rather than the breach.
Splitting up the sentence removes any such ambiguity or awkwardness:
English provision (brief, reader-friendly sentence structure):
To comply with its obligations under Act No 477/2001 Sb. on packaging, as amended (the “Packaging Act”), the Client must inform ABC of the type and weight of the packaging consigned at least once per calendar quarter. Any breach of the Client’s obligations under this paragraph of the T&Cs will constitute a material breach of the Agreement. (37 words + 20 words)
Admittedly, we’re still well above the recommended 20-word average. A particularly succinct lawyer might find ways of trimming this provision further, such as by citing only “the Packaging Act” rather than “Act No…as amended”. Or condensing “the Client’s obligations under this paragraph of the T&Cs” into just “these obligations”. But just by splitting the sentence in two, we make it easier for the reader to process all information on the first reading.
Example 2
The example above should give a basic idea of how using short sentences can aid readability. And you’re free to stop here if you think you’ve got the gist. (Thanks for reading!)
But if you’d like to stick around I’ll take you through one more example, this time from Spain.
This example is taken from a Spanish agency contract between a sports club and a player’s agent. For context, the player has already instructed the agent to negotiate a transfer to a new club:
Spanish provision:
El contrato que se celebre entre el JUGADOR y el CLUB con la intermediación del AGENTE, deberá formalizarse con anterioridad al día treinta y uno (31) de enero de 2020, y se extenderá al menos, a cuatro (4) temporadas deportivas completas más lo que resta de la temporada 2019/20, para el caso en que el JUGADOR se incorpore en la temporada 2019/2020, bien por haber alcanzado el CLUB un acuerdo con el EMPLEADOR ACTUAL o bien por haber finalizado de forma anticipada y por cualquier circunstancia la relación laboral entre el JUGADOR y el EMPLEADOR ACTUAL, o bien, al menos, a cuatro (4) temporadas futbolísticas completas, para el caso en que el JUGADOR se incorpore en la temporada 2020/21 por haber finalizado el 30 de junio de 2020 el contrato que el JUGADOR tiene suscrito con el EMPLEADOR ACTUAL. (139 words)
English provision (replicating long Spanish sentence structure):
The contract agreed between the PLAYER and the CLUB with the intermediation of the AGENT must be executed no later than 31 January 2020 and shall have a duration of at least four (4) full sports seasons plus the remainder of the 2019/20 season if the PLAYER joins the CLUB during the 2019/20 season, either due to the CLUB having reached agreement with the CURRENT EMPLOYER or due to the working relationship between the PLAYER and the CURRENT EMPLOYER having terminated early for any reason, or at least four (4) full sports seasons if the PLAYER joins the CLUB during the 2020/21 season due to the PLAYER’s contract with the CURRENT EMPLOYER having expired on 30 June 2020. (118 words)
How much can you take from a first reading of this 118-word sentence? It’s a lot of information to pack into one sentence.
In effect, the clause contains the following information:
The CLUB must sign an employment contract with the PLAYER no later than 31 January 2020.
The PLAYER will join the CLUB either:
during the 2019/20 season (i.e. during the current transfer window); or
during the 2020/21 season (i.e. at the end of this season).
The PLAYER will join the CLUB during the 2019/20 season if:
the CLUB reaches agreement with the CURRENT EMPLOYER to acquire the PLAYER; or
the PLAYER negotiates his release from his CURRENT EMPLOYER.
Failing that, the PLAYER will join the CLUB during the 2020/21 season, after:
the PLAYER’s contract with his CURRENT EMPLOYER expires.
The duration of the PLAYER’s contract will be as follows:
if the PLAYER joins the CLUB during the 2019/20 season, the remainder of the 2019/20 season plus at least the next 4 complete seasons;
if the PLAYER joins the CLUB during the 2020/21 season, at least the next 4 complete seasons.
Whereas Spanish contracts are notorious for their long, never-ending sentences, English contracts are not. So in a contract intended for an international, English-speaking audience, the information would be better presented in briefer sentences. It might look something like this:
English provision (brief, reader-friendly sentence structure):
The CLUB and the PLAYER shall execute the contract negotiated by the AGENT no later than 31 January 2020. The PLAYER will join the CLUB before the end of the 2019/20 season if (i) the CLUB reaches agreement with his CURRENT EMPLOYER or (ii) the working relationship between the PLAYER and his CURRENT EMPLOYER terminates early for any reason. Otherwise, the PLAYER will join the CLUB during the 2020/21 season, after the PLAYER’s contract with his CURRENT EMPLOYER expires on 30 June 2020. In either case, the contract between the CLUB and the PLAYER will expire at the end of the 2023/24 season. (19 words + 38 words + 24 words + 20 words = average of 25 words)
Of course, unlike lawyers, legal translators aren’t often afforded the luxury of entirely reworking clauses that have been sculpted by local lawyers. But the translator should at least split the provision into manageable sentences: i) the obligation to execute the contract; ii) the contract duration if the player joins this season and the conditions for that to happen; and iii) the contract duration if the player joins next season and the conditions for that to happen. The average sentence length might be closer to 30–35 words, but this will still make a sizeable difference to our reader’s understanding of the text.
I hope you have enjoyed this article and that you can draw something from it in your own legal writing or legal translation process.
In our next article, we’ll look at how to use shall correctly and the issues its misuse can cause in contracts and legal writing in general.
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