- The online book: Drafting Contracts
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- Published: Drafting contracts
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- Part I - Contract drafting: matters of style
- 1 - General drafting principles
- 2 - Matters of style and legal culture
- Part II - Structure and presentation of contracts
- 3 - Main contract outline
- 3.1 - Setting up an agreement
- 3.2 - Presentation styles: European vs. US style
- 3.3 - A cover page and table of contents
- 3.4 - First part of an agreement
- 3.5 - The body of the agreement
- 3.6 - Blank space after the body of the contract
- 3.7 - Signature blocks, seals and witnesses
- 3.8 - Aspects of signing, and initialling
- 3.9 - Notarisation, legalisation and apostilles
- 4 - Structuring the transaction documents
- 5 - Presentation: the look and feel
- Part III - Drafting contracts and contract clauses
- 6 - Typical drafting habits and 'legalese'
- 6.1 - Certain funny phrases
- (a) - For the avoidance of doubt, ...
- (b) - ‘…, as the case may be’
- (c) - The issue of ‘include’ and ‘without limitation’
- (d) - ‘Subject to…’
- (e) - ‘Notwithstanding…’
- (f) - ‘Except as otherwise agreed…’
- (g) - ...provided, however, that...
- (h) - ‘…from time to time’
- (i) - ‘…not to be unreasonably withheld or delayed’
- (j) - Shall be 'deemed'
- (k) - ‘Third parties’
- (l) - 'Hereby'
- (m) - ‘To the maximum extent permitted by law’
- (n) - Intentionally left blank...
- 6.2 - Do's and don'ts
- (a) - Think first: and/or
- (b) - 'In order to' (avoid explanations)
- (c) - Not shall and will (but only one of them)
- (d) - 'Said', 'such' and links
- (e) - Do not write (s) and do not use /
- (f) - ‘The same’ and ‘that certain’
- (g) - Herein, thereof, everywhereof
- (h) - 'Mutual' is a pleonasm
- (i) - Do not emphasise the unnecessary
- (j) - Use of ‘when’, ‘if’ and ‘to the extent that’
- (k) - Use of synonyms and hendiadyses
- (d) - Certain vague terms: without undue delay
- 6.3 - Numbers and formulae
- 6.1 - Certain funny phrases
- 7 - Definitions and contract interpretation clauses
- 8 - Particular types of clauses
- 8.1 - Conditions, conditional clauses and triggering events
- 8.2 - Covenants
- 8.3 - Reps and warranties
- (a) - Warranties - a quick introduction
- (b) - Statements of fact, not obligations
- (c) - Warranties, not representations and warranties
- (d) - A warranty is incorrect (or untrue), but not breached
- (e) - Smoking out the facts
- (f) - Allocation of risk
- (g) - Fitness for purpose and merchantability
- (h) - Bringing down warranties
- (i) - Survival of warranties
- (j) - Disclosures in M&A agreements
- (k) - Warranties in ordinary course business contracts
- (l) - Warranty aspects in major transactions (M&A)
- 8.4 - Limitations of liability and indemnities
- 8.5 - Confidentiality clauses
- 8.6 - Miscellaneous ('boilerplate') clauses
- (a) - Notices clause
- (b) - Amendments
- (c) - No subcontracting
- (e) - Severability
- (f) - Waivers
- (g) - Entire agreement and merger clauses
- (h) - Further assurance (duty to cooperate)
- (i) - Force majeure
- (j) - Announcements
- (k) - No termination or dissolution
- (l) - Independent contractors (‘no partnership established’)
- (m) - Time is of the essence
- (n) - No general conditions to apply
- (o) - Language (translations)
- (p) - Counterparts
- (q) - Independence of the notary
- (r) - Language
- 8.7 - Applicable law clauses
- 8.8 - Dispute resolution provisions
- Part IV - Miscellaneous
- 9 - Contract assembly software
- 10 - Drafting certain specific types of legal documents
- ANNEXES - -
- Annex1 - Ten steps to a succesful upgrade of your contracts
- (a) - Step 1: Selection of contracts and scope of contract automation
- (b) - Step 2: Establishing a best practice group
- (c) - Step 3: Collecting and stripping the model contracts and precedents
- (d) - Step 4: Prioritising the model contracts
- (e) - Step 5: Establishing the procedure and setting the agenda
- (f) - Step 6: Preparing handsome proposals for discussion
- (g) - Step 7: Discussing and establishing the model building blocks
- (h) - Step 8: Determining the company's contract house style
- (i) - Step 9: Identifying approval requirements and business access
- (j) - Step 10: Automating the documents and implementing the workflow
- Annex 2 - Document marking conventions
- Annex 3 - Contract drafting conventions (sample)
- Annex 4 - House style rules (sample)
(j) Use of ‘when’, ‘if’ and ‘to the extent that’
When is ambiguous. When is somewhat ambiguous, since it brings two clauses into a somewhat explanatory conjunction with each other, contains elements of conditionality and implies a reference to timing but does none of these things in a very precise manner. The conditionality is somewhat blurred because when may be interpreted as if..., as as long as... and as during periods that... The latter two interpretations do not necessarily contain crystal clear cut-off points as to whether or not a condition is met.
If is a condition. If refers to a clear-cut context of ‘yes' or ‘no', ‘true' or ‘false'. For example, "if the 100,000 boxes are delivered, the addressee shall pay €1 million". On its own, the sentence means that the delivery is the relevant point in time triggering the payment obligation and indicates that when only 99,999 boxes are delivered, payment has not yet become due.
Best practice. Do not use if and to the extent that: the phrase to the extent that inevitably implies that the condition to which the extent refers must be fulfilled in order for the following consequences to apply. In all cases, drop if and.