Contract Drafting Myth

During my tenure as a commercial lawyer, i had faced this following myth in contract drafting. I would like to discuss it:

1. plain language versus legalese language

lawyers tend to retain legalese language because a change would be risky. The legalese language has been tested by the court if the contract brought before the court. That is a bad news for client.

2. contract drafting is not a craft

drafting style do not serve the purpose of contract drafting. Contract is made for the interest of the client, not to meet the subjective satisfaction of the drafter (lawyer). For some technical reason, contract drafting should be seen as a commodity within a production line and it has a life-cycle. Today we have several good document automation software or websites.

3. contract, at its finest, is a (legal) tool to reflect the “meeting of the minds” of the contracting parties

contract is not written to convey information or to persuade/entertain the reader. Contract, as a legal concept, is a tool to make the “meeting of the minds” becomes legally enforceable, creating legal rights and obligations.

If it is so, what the role of lawyer? a lawyer is able to add value by structuring an negotiating a transaction. On legal technical side, lawyer has a great leverage because they can read the law (rules, regulation, legal theory, precedent, contract’s building block). Lawyer also had rigorous training in spotting a risk. They also had an attention for detail.

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