LawProse Lesson #278: Beware formbooks.

LawProse Lesson #278: Beware formbooks.

It’s truly astonishing just how often badly drafted provisions become enshrined in contractual forms—even those published as “models.” Just in the past week, my LawProse colleagues and I have come upon formbooks containing the following provisions. Can you spot the substantive problems? (1) “Within seven (7) days after the signing of this Agreement, Buyer agrees to furnish Seller with each of the Seller’s bank statements over the past six (6) months.” (2) “If any litigation arises from or in connection with this Agreement, each party hereto agrees to pay the attorney’s fees of the other.” (3) “Contractor hereby agrees prior to commencement of the services contemplated hereunder that it shall furnish to Client satisfactory evidence of the insurance coverage required hereunder and the certificate shall provide a thirty (30) day written notification provision that notice to Client is required to be sent prior to cancellation of or material change to such insurance.” Occasionally, as noted in Reading Law: The Interpretation of Legal Texts, it’s possible for even a legislature to have a gross typographical error in which losing party gets replaced by winning party—as in a provision that “the winning party must pay the other side’s reasonable attorney’s fees.” See Reading Law 235–36 (2012). It may be an arguable point, but the risk of this type of blunder is probably even greater in private legal instruments, which are typically subjected to less scrutiny. Now for the answers: (1) The second instance of “Seller” should certainly be “Buyer.” How could the Buyer have access to the Seller’s bank statements? (2) This provision surely makes no sense: it gives each side an incentive to run up grossly excessive legal fees. (3) This includes a misplaced modifier. The first instance of the conjunction that should appear after agrees not hereunder. The Contractor isn’t simply agreeing before the start of services; the Contractor is agreeing to give the Client evidence of the insurance coverage before services begin. Instead of just copying a provision, think about what it actually says—or doesn’t say. Recognizing and fixing the problems with forms will protect your client from ridiculous duties and needless litigation. Further reading: Garner, Legal Writing in Plain English 139–41 (2d ed. 2013). Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 234–39 (2012). LawProse On-Demand seminar: Better Contract Drafting.

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