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Drafting of an Agreement

What is legal drafting?

In simple words, drafting means preparing a preliminary version of a document. So, legal drafting can be defined as collection of law, its components, facts and other related stuffs in a legal language on a legal document. Laws, facts and language are the main three components of the legal drafting and all three have equal importance.

Legal drafting can be done of various documents such as constitution/s, statutes, ordinances, contracts, agreements, wills, indentures, etc. To understand the concept further, let us understand the process of drafting.

This process operates in two planes i.e., verbal and conceptual. The draftsman seeks both the right words and right concepts. Therefore, we can say that drafting is an art which is composed of two main things, 1st, thinking and 2nd, composing.

Legal drafting is the preparation of legal documents like contracts, notices, affidavits, etc. It is an art which can be mastered by practice. Legal drafting gives the brief knowledge about the facts of the situation and governing laws.

For an effective legal drafting, mainly three points should be followed. These three points are nothing but the three stages of the completion of the draft. In the first point or the first draft, more importance should be given to the fullness of the facts and their comprehensiveness. In the second stage, the mistakes made in the first stage should be removed and other significance changes should be made wherever needed.

And in the last stage, final touch should be given. Corrections should be made, margins, spelling mistakes, punctuation mistakes, etc. should be corrected. After these steps, the draft should be ready to be presented before the parties and authorities.

Principles of drafting: Mainly there are four principles that govern drafting. They are as follows:

  1. Formation of outline:
    As we all know, draft is to the document what the pillars and basement are to the building, in other words, draft is the skeleton of the document. For the draft to be more effective, it should elaborate the issues. Also, it should address the issues. One can say that draft should be as detailed as possible. It should not be a vague. The structure should be like each paragraph should contain the details about the one major point.
     
  2. Arrangement of facts:
    The manner in which the facts have to be arranged should be given importance. A step-by-step arrangement of the facts should be presented to help in the organized analysis of the issue/problem. Ideas should be presented uniformly through the draft and it should be consistent.
     
  3. Language & Style:
    Style is an important factor for the transport of ideas through drafting. One can clearly present anything only if his ideas about that thing are clear. So, we can say that, a clear presentation is an essential requirement for clear thinking. The writing style should be simple. Appropriate use of legal terms should be done. Facts should be conveyed in a precise and simple manner. Simple language should be used. Unnecessary paragraphing, poor punctuation, incorrect spelling and other such language should be avoided. And at last, nothing should be repeated.
     
  4. Physical characteristics:
    Should be typed on standard size paper as prescribed. Appropriate margins should be left.

Rules of Drafting: For making a draft, there are some rules that are needed to be followed. Those rules are:

  1. A design of the draft should be fixed before starting the draft
  2. No facts should be added or removed at random time,
  3. Technical language should be used while avoiding the negative statements,
  4. Legal terms should be precisely used,
  5. Draft should readily intangible,
  6. Draft should be in a format that both parties should clearly understand,
  7. It should be self-explanatory, choice of words should be appropriate,
  8. The words used should reflect politeness in order to convey more in a kind, natural and justifiable manner,
  9. Facts should be arranged logically while using numbers and alphabets for the paragraph,
  10. Due care and attention should be placed on the rules of legal interpretation and the case law pertaining to the related matter.

Significance:
Merits of good/skillful drafting:
When done with full consciousness, everything turns to be effective. Similarly, when done skillfully, drafting has so many merits.

Some of those merits are as follows:
  1. Who is obliged to perform? What has to be performed? When the performance should be done? Where it has to be performed? How it should be performed? How much money should be given? How much goods or services should be given? Etc. All such questions will be answered with skillful or good drafting.
  2. Suppose, if any one of the respective parties or both the parties become hostile. And start seeking to undermine the other at every possible opportunity. A skillful draft will be of great help as it will help and provide a proper guidance for the governing of relationship.
  3. Also, the court/s will also be provided by a sufficient guidance for the interpretation of the contract as well as for imposing remedies.
  4. A good draft clearly differentiates duties of both the parties. All the provisions included in the drafting are adequate and they generally comply with the parties' intentions.
  5. It also distinguishes between contractual obligations and rights.
  6. Also, a good draft provides background information, explains the meaning of certain terms.
  7. Sometimes, the word or phrase used in the contract has a very different meaning from that of the standard dictionary, in such scenarios, good drafting plays major role. As good drafting explains such terms.
Demerits of bad/clumsy drafting:
We know, every coin has two sides. Skillful drafting has its own merits, similarly when drafting is not done skillfully, it has many demerits.

Some of those demerits are as follows:
  1. Most of the times, default provisions included in the contract are not adequate and they do not comply with the intentions of the parties. As a result, remedy of the default provision is usually termination of the contract even though parties do not desire for the termination.
  2. Many of the times, a condition arises where a word or phrase has more than one meaning. Such condition is considered as ambiguous or vague.
  3. Vagueness arises by the use of words that do not have any boundaries. So, it creates a choice with regard to their degree or extent.
  4. Vagueness almost always leads to uncertainty. However, there are also instances where it may be considered appropriate.
  5. Ambiguity is not realized until the completion of the document and is thus not intentional.
  6. Sometimes judges themselves have to the work of redrafting due to various ambiguities and vagueness.
  7. The impact of poor legal drafting has been so profound that it has sometimes resulted in changes in the law itself.

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