Writing contractual documents is a skill. Normally one that is taught and learned through years of experience, trial and error.
At Raildiary we’re always trying to simplify how we communicate with Users and give them the tools to communicate simply and effectively using our platform.
Exploring some of the NEC guidance on drafting works information we found, slightly hidden away, the following advice which is some of the best we’ve ever read.
It is brilliant in its simplicity and effectiveness in communicating why, how and what those drafting contracts should consider and put into practice.
It is reproduced here in full and credited to Thomas Telford Ltd, authors of the NEC suite of contracts and guidance documents. We hope it is a useful and ongoing resource for those tasked with drafting contracts, writing instructions and collating any professional documentation.
General drafting advice (taken from the NEC3 ECC Works Information Guidance document)
The following description of NEC drafting style will help users draft Works Information and other contract documents clearly.
1. A basic objective of NEC contracts is that they should be clear and simple. The drafting delivers clarity and simplicity of language. Simplicity also follows from the design of the management processes in the contracts.
2. One of the objects of using simple language in the contracts is that they should be easy for people whose first language is not English to use. A further advantage is that the contracts can be translated into other languages accurately.
3. Use the simplest possible words. Simple words have few syllables.
4. Do not use words which are not needed.
5. Sentences should be as short as possible. Twenty words is fine. Never have more than forty. Use several short sentences instead of one sentence with several clauses.
6. Many statements are conditional. ‘If this happens, the Contractor does this’. Put the condition first, not last and use ‘if’, not ‘when’. ‘If this happens, the Contractor does this.’ [not: ‘The Contractor does this when this happens.’] Use ‘when’ only if timing is implied as in subclause 36.4.
7. Use commas properly. The pause which a comma creates can help understanding.
8. Bullets are used when a clause includes a list. Do not use bullets for short lists with short descriptions. The following does not need to be bulleted: ‘‘The Contractor arranges for ‘Hail to the Chief ’ to be played by a brass band outside the Project Manager’s office at 9 a.m. on
· Fridays and
· her birthday.’’
9. A useful check is that punctuation of bulleted sentences should work if the bullets are removed. Bullets end with a comma except the last but one which ends with ‘and’ or ‘or’ and the last which ends with a full stop. Do not put a comma before ‘and’. ‘And’ replaces the comma before the last item on a list as above.
10. Whenever possible, put bullets at the end of a sentence. Having a bit more of the sentence after a bulleted list is clumsy as the reader does not expect the text and the sentence can become very long and not easy to understand.
11. Bullets are indented. Bullets within bullets should be avoided if possible. If used, as in subclause 31.2, use a double indent.
Adjectives and Adverbs
12. Old-fashioned contracts use a lot of adjectives and adverbs. NEC contracts use the absolute minimum, which is hardly any. This is perhaps the most important drafting convention for NEC. Use an adverb or adjective onlyif it is really unavoidable.
13. Verbs and nouns are usually precise, adverbs and adjectives are usually imprecise. ‘The Contractor does all urgent work quickly’ is easy to understand. Unfortunately, you can argue about the meaning of ‘urgent’ (adjective) and 'quickly’ (adverb). ‘The Contractor’ (noun), ‘does’ (verb) and ‘work’ (noun) are precise. To make the point absurdly, ‘George ate a hefty meal unhurriedly’ is vague but not meaningless. ‘George ate a meal of 42 mouthfuls in 21 minutes’ is boring but precise. Contracts are not intended to be a good read. They have to state who does what in words of unarguable precision and clarity.
14. Some adverbial phrases are as imprecise as adverbs, e.g. ‘quickly’ in 'come quickly’ is obviously an adverb. So, in effect, is ‘as soon as you can 'in ‘come as soon as you can’.
15. This text, for example, about extension of time, comes from clause44(1) of the ICE conditions fifth edition, adverbs and adjectives in italics.‘. . . . . . . . . . . . . . . . . . or exceptional adverse weather conditions or other special circumstances of any kind . . . . . . . . . . . . . . . . . . . . . . . . . . . be such as fairly to entitle the Contractor to an extension of time . . . . . . . . . the Contractor shall within 28 days after the cause of the delay has arisen or as soon thereafter as is reasonable in all the circumstances deliver to the engineer full and detailed particulars of any claim to extension of time . . . . .. . . . . . . . . . . . .’
16. It is impossible to decide whether an extension of time should begiven and, if so, for how much, when and how described until the courts have decided what the adjectives and adverbs mean.
17. NEC drafting requires the absolute minimum of adverbs and adjectives. Some are innocuous as in subclause 65.2 which uses the adjective ‘wrong’ as in‘ wrong forecast’.
18. Clauses should be as short as possible with no more than two sentences. They should cover only one subject.
19. Use the present tense for all statements of what somebody must do or not do. It is seldom necessary to use another tense. ‘If the sky has fallen down, the Project Manager decides what the Contractor will do’ uses three tenses. ‘If the sky falls down, the Project Manager decides what the Contractor does ’uses only the present.
20. Capital initials show that a term is defined in the contract. When drafting, test that a definition is right by putting it into the sentences where the defined term is used. These definitions are only abbreviations and must only be abbreviations. If there is anything to say about the defined term, it has to be in the clauses.
21. There are exceptions. Project Manager, Supervisor, Employer and Contractor have capitals but are not defined.
22. ‘May’ in NEC means ‘is allowed to’ as in ‘the Supervisor may instruct . . . . . .’ Do not use it to mean that something might happen.
23. ‘Any’ can usually be deleted.
24. Either a, b, c or d. Bullet the alternatives if they are phrases of some length.
In summary, the skill of effective contract drafting hinges on simplicity, clarity, and precision.
The NEC's guidance on drafting works information, with its focus on plain language, concise sentences, and limited use of adjectives and adverbs, proves to be an invaluable resource for those involved in the realm of contracts.
By adhering to these principles, we can ensure contracts are accessible and actionable for a diverse audience while minimizing potential ambiguities.
It's important to keep in mind that contracts are not intended to be intricate literary pieces; they are tools for accurate and transparent communication.
Master the art of clear and straightforward contract drafting, and you'll be well-prepared to navigate the intricacies of the legal and business landscape with confidence.