Construction law knowhow by David Lewis

Under and in accordance with the provisions of ...

30/05/2010 18:11

Acting for a developer on one of his projects, I came across a lengthy and obscure clause in an appointment drafted by his architects (or, more likely, their solicitors).  I would describe it as a “bespoke” draft, because it didn’t come from any standard precedent that I’m aware of.  As my eyes glazed over, I read:

It is not intended that the Architect should in any way be responsible to check or verify anything which it is not within the normal competence of a prudent experienced Architect to check or verify nor is it intended that the Architect should be obliged to employ other appropriately qualified professional consultants to give such advice; provided that if the Architect after consultation with the Employer’s other consultants is of the opinion that any matter arising relating to the Development is such that neither the Architect nor the other consultants can properly advise the Employer in respect of that matter then the Architect shall notify the Employer of that opinion and advise the Employer of occasions when it considers that the Employer should seek the opinion of others with suitable qualifications to consider the matter

135 words, but who’s counting?  I had to read it a couple of times to understand it, but I didn’t make any changes to it.  The principle seemed reasonable, at least for the particular project, and it’s not my job to improve other people’s drafting where it makes sense.

However, as an intellectual exercise – and at no expense to my client, of course - I decided to spend a few minutes redrafting the clause to make it shorter and more readable.  Here’s the result:

The Architect need not check anything outside a prudent and experienced architect’s normal competence but shall instead, after consulting the other professionals, advise the Employer to seek the opinion of suitably qualified persons.

As you can see, I reduced it to 33 words: a saving of 102 words, or 75%.  I believe I also made it somewhat more readable.  How exactly did I do all that?

The exercise is reminiscent of “précis”, where schoolchildren in the 1950s had to compress a lengthy prose passage while retaining its essential meaning, but the techniques are different.  Précis is a strategic and literary exercise; the simplification of contractual drafting is a tactical and legal assignment.

If you re-read the original clause critically, you can’t help noticing masses of excessive verbiage, all of which can easily be translated into plain English.

Verbiage

Plain English

“It is not intended that the Architect should in any way be responsible to”

“The Architect need not”

“check or verify”

“check” [can you check something without verifying it?]

“not within the normal competence of a prudent experienced Architect”

“outside a prudent and experienced architect’s normal competence” [you can save at least one word and sometimes more by just using the possessive case]

“should be obliged to”

“must”

“is of the opinion”

“thinks”

“that any matter relating to the Development is such that neither the Architect nor the other consultants can properly advise the Employer in respect of that matter”

“that neither the Architect nor the other consultants can properly advise the Employer about any matter”

“in respect of”

“about” or “for” [you can abbreviate “with respect to”, “in regard to”, and other phrases in the same way]

“shall notify the Employer of that opinion and advise the Employer”

“shall advise the Employer” [can you advise someone without notifying them?]

“of occasions when it considers that the Employer should seek the opinion of”

“to seek the opinion of”

“others with suitable qualifications to consider the matter”

“suitably qualified persons”

“under and in accordance with the provisions of” [not actually part of the offending clause, but this is an expression I especially dislike, along with "in pursuance of"]

“under”

To simplify the clause I replaced the wording in the first column with the text in the second column, added a little light punctuation, fairly ruthlessly deleted anything repetitious or non-essential, and then put it together so that it made sense.

One further example, to show you how it's possible to reduce an even longer clause (169 words) to a manageable size while improving its readability.  This one’s from a draft building contract: a “bespoke” draft, like the architect’s appointment from which the first clause came.

Expressions with initial capitals (like “Extension Period”) are defined elsewhere in the document, but you don’t need to see the definitions; this is a drafting exercise, not a legal examination.  Here’s the original clause:

The Employer and the Contractor shall together seek to agree a fair and reasonable period for each Extension Period and when each such Extension Period has been agreed or (in the event of dispute) determined by an Independent Person acting as an expert in accordance with clause 13 each such Extension Period shall be granted to the Contractor and all the dates and periods in this Agreement which are expressed to be extendable by reason of such delay shall be treated as deferred (or further deferred if prior Extension Periods have already been granted) by such agreed or determined Extension Period and so that if the Contractor fails to comply with its obligations to achieve the matters the subject of this Agreement by the date specified in this Agreement referable to such matters but would have so complied but for the Extension Events giving rise to the relevant Extension Period then for the purposes of this Agreement the Contractor shall be treated as having so complied with such obligation

To reduce it in size and make it clearer to read, you will need to:

  • retain the defined expressions (those with an initial capital letter)
  • be ruthless
  • be ruthless
  • don’t confine yourself to a “legal” style: even if you omit words which are theoretically essential, so long as the clause’s meaning is clear it will probably work legally; that is to say, a court or arbitrator won’t necessarily construe it literally but will try to give it the commercial effect which the parties apparently intended

My own solution reduces the clause to 56 words:

Each Extension Period shall be determined by agreement or by an Independent Person under clause 13 and shall be added to any Extension Periods previously determined to form the Total Extension Period; and where this Agreement requires the Contractor to do anything by a stated date the Total Extension Period shall be added to that date.

© 2009-2016 David Lewis - all rights reserved

Create a website for freeWebnode