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Chapter 2
LEGAL DRAFTING
Lawyers have two common failings. One is that they do not write well
and the other is that they think they do. [C Felsenfeld, The Plain
English Movement In the United States]
This chapter on legal drafting is divided into six parts: the use of plain English,
drafting techniques, drafting of pleadings, drafting of agreements, drafting of letters,
and drafting of opinions.
Repetitious phrases
authorise and empower
cease and desist
final and conclusive
fit and proper person
furnish and supply
good order, condition, state and repair
made and entered into
no legal force and effect
nominate, constitute and appoint
null and void
revoke, cancel and annul
The following articles deal with use of simple English in greater detail.
Plain Speaking in Law R H Christie 1967 (2) RLJ 134
Plain and Simple G Feltoe and P Nherere 1993 Legal Forum Vol 5 No 1
Legalese Why lawyers use it; how to avoid it S Cant (1991) 21 Businessmans
Law 73 and 107
Techniques of drafting
Aims of drafting
When drafting any document the lawyer should aim at exactitude, clarity and brevity
but brevity should not be achieved at the sacrifice of exactitude and clarity.
Layout of documents
It is important to ensure that a document is easily read. The following factors may
affect the readers ability to understand a document and should be borne in mind when
drafting.
1. Type size a larger type is generally easier to read than a smaller one. Samples of
type size are as follows.
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Avoid changing language unless you wish to change the meaning. For example, in a
lease, the leased premises might be described as both the property and the leased
premises. Only one of these terms should be used and the other terms, if used, should
refer to something entirely different. In interpreting legislation and contracts a change
in the use of words is a signal that a different meaning is intended. The concept of
elegant variation which requires a writer not to repeat a word in a sentence can create
difficulties. If is better to repeat a word if by doing so confusion will be avoided.
Although one should always aim at intelligibility, there may be times when the
document will not be readily understood by the layman, particularly where the matter
is complex. The need for such complexity should not, however, be taken as an excuse
to make ordinary documents unnecessarily complex.
Sources of mistakes
It is very easy to overlook mistakes and it is wise when checking a document to
remember that similar-sounding words can become confused, eg employer and
employee, while typing errors of similar words are often overlooked eg any/may, not/
now.
The alteration of numbering frequently causes problems, particularly where clauses
are cross-referenced. It is often wise to mark on an early draft all clauses where there
is a cross reference and to check them in the final draft.
Confusion may arise with the use of cumulative negatives and less and more. The
present and past tense may become confused while the repetition of prepositions may
give rise to problems. For example, to the children of A and B means to the
children of A and to B.
Enumerating of particulars may give rise to an application of the ejusdem generis rule
because it is difficult to include everything and essential matters may be overlooked. A
common way of dealing with this problem is to use a general term followed by the
phrase notwithstanding the particularity of the aforegoing the following shall be
included. A possible substitute for this term is without limiting this ....
The slavish use of precedents leads to many mistakes. Precedents are invaluable but
they must be used with discretion.
Legal drafting 2/9
Use of shall
The use of the word shall often renders the language complicated and difficult to
understand. Compare the following:
If the purchaser shall fail to pay any instalment, the whole capital shall
immediately become payable.
If the purchaser fails to pay any instalment the whole capital shall immediately
become payable.
In the first example the first shall is unnecessary while in the second shall is used
properly to indicate the future tense.
Frequently, it is possible to substitute must for shall when creating an obligation.
And/or
And has a conjunctive effect unless the context indicates otherwise. Or has a
disjunctive effect.
An example of and used in a conjunctive way is attorneys and advocates are now
called legal practitioners. An example of or used properly in a disjunctive sense is
you may wear either a jacket or a jersey but not both.
It is, therefore, important to understand exactly what is intended when using and and
or. The incorrect use is common and there is a great deal of case law on the
interpretation of and and or. Sometimes the expression and/or is used in the
hope that it will eliminate the problem. However, there has been judicial criticism of
the term. It is clumsy and may lead to ambiguity so it is probably better to avoid it.
Time
Loose descriptions of time give rise to ambiguity in documents. It is better to be
precise and to state exactly what is meant. The following may assist in interpretation
of time clauses.
1. Where something must be done after, the time runs from the day after that date.
When the terms before and after are used the time of day should be included.
2. At a date or a time means from the period when the date time begins to run. For
example, We must have your letter at 11:00 am means that delivery at 11:01 am
would be too late.
3. At least 10 days before means 10 clear days without including the date specified.
For example, if something is to be done at least 10 days before 14 February it must
be done by midnight on 13 February.
4. By refers to the whole of the day in question.
5. On means that the event referred to will commence on that day. When something
must happen on a specific day, it may happen at any time within the entire 24
hours of that day.
6. Immediately means exactly that as opposed to as soon as possible.
7. Avoid within a reasonable time. It gives rise to ambiguity and may require a
court to decide what the parties meant and what would be considered objectively to
be a reasonable time.
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Drafting of agreements
(T)he function of an agreement is to express the agreed rights and liabilities of the
parties with such precision that there can be no doubt at a future date as to what they
are. [Harding Boulton, The Making of Business Contracts page 185.]
Taking instructions
The basic principle set out in the quotation above must be remembered at all times.
Occasionally, clients are impatient with lawyers who seek clarification of matters but
if this occurs, the client should be advised that the critical attention of an independent
person is necessary to ensure clarity. Clients should also be advised that the lawyer is
responsible for the form and the legality of the agreement but the client is responsible
for the substance of the agreement. A lawyer may, however, have to assist the parties
to negotiate and crystallise the agreement by asking appropriate questions.
A legal practitioner must strive to understand the business implications of the
proposed agreement so that he can advise his client on the possible legal problems. He
should establish what is essential to his client and what is merely desirable. The final
agreement must reflect the parties intentions in readily understood language.
It is also important to establish the clients time limits so that the legal practitioner can
draw the agreement to accommodate the client. If it is agreed that the agreement will
be drawn by a certain date, it is essential for good client relations that the agreement is
ready on that date.
Structure of an agreement
Save for notarial agreements which are largely outside the ambit of this book, most
agreements conform to the structure which is discussed below. However, standard
form agreements may be set out differently to ensure that they may be completed
easily. These will be discussed subsequently.
Agreement of Lease
between
ABC
of P O Box 1, Harare
(the Lessor)
and
DEF
of P O Box 2, Harare
(the Lessee)
Legal drafting 2/13
Some draftsmen prefer to omit the addresses from the headings and insert them in the
domicilium clause. Either form is acceptable.
Preamble
The purpose of the preamble is to set out briefly the intentions of the parties in
entering into the agreement. It many also be used to record that there is a prior verbal
agreement, the terms of which are now being recorded in writing. If the latter is the
case, the final recital should state Now the parties wish to record their agreement.
When drafting preambles, it is essential to ensure that the correct position is set out.
Either there is a prior verbal agreement or the written agreement is to be the sole
agreement between the parties. There must be no confusion as this could result in a
party arguing that an unsigned written agreement is merely a record of a prior verbal
agreement. Thus, it would be unwise to state in the final recital that the parties have
agreed as follows ... if the intention is that the written agreement once signed is the
only agreement between the parties.
A preamble may not be necessary in simple agreements but can be extremely helpful
in complicated agreements. The usual form where the written agreement is the sole
agreement is set out below. In this example, there will be both a sale of shares and a
shareholders agreement to govern the rights of the shareholders after the sale takes
place.
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WHEREAS
A The Seller wishes to sell some of its shares in XYZ Company
(Private) Limited to the Purchaser.
B The purchase price is to be paid partly in cash and partly by the
transfer of the purchasers shares in PQR Company (Private)
Limited.
C The parties wish to enter into a shareholders agreement
regarding their respective rights and liabilities once the transfers
of the shares in XYZ Company (Private) Limited and PQR
Company (Private) Limited have been made.
IT IS AGREED ...
Index
In longer and more complex agreements it is essential to have an index to make it
easier for the parties to find their way around the agreement. While the clauses should
be listed at an early stage in drafting, the page numbers should only be inserted once
the agreement is in final draft. This will reduce the number of amendments which may
need to be made to the index.
Headings
Headings are useful to assist the parties to find their way around the agreement
quickly. Sometimes there is an express clause that the headings are for guidance only
and do not form part of the agreement itself. If the headings are carefully stated, the
limitation should be unnecessary.
Definitions
Most lawyers recognise the advantages of defining terms used in the agreement. The
benefits are that the document is usually shorter as it is possible to avoid repetition and
the possibility of errors is reduced as there is uniformity in the use of crucial terms.
However, there is some disagreement as to the method used. In some agreements,
definitions may be given throughout the document. However, it is preferred that in all
but the simplest agreements, a definitions clause is included. The principal reason for
this is that the definitions can be found easily.
In appropriate circumstances statutory definitions may be used. For example,
definitions used in the Companies Act are useful in agreements relating to companies.
Capital letters may be used to designate defined words in the text. This draws attention
to the use of the defined word. However, the too frequent use of capital letters
interrupts the flow of reading and may make the document more difficult to
understand.
In order to avoid ambiguity, it may be useful to insert the following clauses in a
definition clause.
Legal drafting 2/15
Text of an agreement
The text of the agreement sets out the terms which have been agreed by the parties. It
is important to ensure that the structure is logical and that the text follows the rules
already stated.
Every agreement must have a promissory clause in which is set out what the parties
promise to each other. The subject matter of the agreement must also be described and
the consideration or price stated. The remaining terms and conditions will depend on
the nature of the agreement being drafted.
Signatory page
This may be placed either at the beginning or the end of the agreement. The usual
form is set out below.
1. .....................
................
Lessor
2. .....................
AS WITNESSES:
1. .....................
................
Lessee
2. .....................
When arranging for signature of an agreement, it is desirable that the parties initial
each page and at least two copies should be signed, one for each party. If there are
more parties then additional copies should be signed.
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Annexures
Annexures to an agreement are very useful as they can contain the detail which would
complicate the main agreement, but they must be properly described. They may be
called schedules or annexures and the description will depend on the number. For
example, it would not be sensible to describe the annexures alphabetically if there are
more than twenty-six unless it is anticipated that descriptions such as AA, BB, etc will
be used.
X has agreed to lease the equipment listed below to the customer on the
annexed standard conditions.
Schedule
1. Period of lease
2. Equipment leased
3. Rent
............................. ...........................
Date: Date:
Drafting of pleadings
Object of pleadings
The object of pleadings is to summarise the parties cases and to define the issues.
[See Robinson v Randfontein Estates GM Co Ltd 1925 AD 173/198]. It is necessary to
define the issues, not only so that the limits of the action are clear, but also to ensure
that once judgment is given, the parties may not litigate again on the same issues. [See
Becks Theory and Principles of Pleading in Civil Actions page 32.]
3. An amendment may give grounds for cross examination or prejudice the case. For
example, it could give rise to questions of credibility.
It is important not to give too much detail in a pleading but not so little that further
particulars are requested. Only relevant facts should be stated and they should be
stated with precision.
Use simple language and avoid legalese such as said Plaintiff, hereinafter etc.
Precedents of pleadings such as those in Amlers Precedents of Pleadings and Becks
Theory and Principles of Pleading in Civil Actions are extremely useful. However, the
use of precedents requires caution. It is essential to check the relevant law and the
legal requirements and not merely rely on the precedents without further research.
Pleadings are binding on the parties so they must be carefully drafted. A court has a
wide discretion to allow amendment but the need for an amendment may reflect badly
on the legal practitioner or prejudice the clients case. The reputation of a legal
practitioner who practices litigation may well stand or fall by his pleadings so it is
particularly important that they are well drafted.
2. The full names of the defendant, his representative capacity, if this is appropriate,
and his occupation, if known to the plaintiff, and his address.
Both magistrates and judges state that adequate information regarding the parties is
frequently omitted from pleadings.
3. Details of the nature of the claim. Where the summons stands alone, the statement
of the plaintiffs case must be given in sufficient detail to found the basis of a claim
or it will be excipiable. Naturally, the particulars of claim or declaration must set
out the full details of the claim.
5. Whether interest is claimable and, if so, from what date. If the defendant has not
been placed in mora, interest will only be claimable from the date of service of the
summons.
6. It is usual to claim party and party costs from a defendant but, if an agreement so
provides, a claim may be made for legal practitioner/client costs. Agreements
should always be checked for their costs clauses.
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7. The prayer (which must be a specific statement of the relief requested) concludes
the pleading [rule 111 of the High Court Rules].
The usual form of a prayer is as follows.
Where there is more than one party, it is necessary to consider the liability of the
parties. Is it joint or joint and several?
Where there are alternative claims the bases for them must be set out. It is important to
remember that inconsistent allegations could render the claim excipiable. [See United
Dominion Corp Rhodesia Ltd v Van Eyssen 1961 (1) SA 53 (SR) and Lloyds & Co
(SA) Ltd v Aucamp 1961 (3) SA 879 at pp 881-2.]
Drafting of plea
When drafting a plea, in addition to the analysis of the defendants case, it is also
necessary to analyse the plaintiffs declaration to ensure that there are sufficient facts
to justify the conclusions of law made by the plaintiff. If a material allegation is
missing this will found an exception.
Rule 104(1) of the High Court Rules is relevant to the drafting of a plea.
The defendant or the plaintiff, as the case may be, shall raise in his pleading all
matter which show the action or claim in reconvention not to be maintainable,
or that the transaction is either void or voidable in point of law, and all such
grounds of defence or reply, as the case may be, as if not raised would be likely
to take the opposite party by surprise, or would raise issues of fact not arising
out of the preceding pleadings, as, for instance, fraud, prescription, release,
payment, performance or facts showing illegality, either by statute or common
law.
The plea must set out the defence in sufficient detail for the plaintiff to know the
nature of the defence. [See E K Green & Co v Adkins 1930 CPD 253.] A bare denial is
unacceptable and will lead to an excipiable plea.
In the High Court the plea must deal with every allegation of fact made by the
plaintiff. An omission will mean that the fact is admitted. [See rule 104(2).]
It is essential to avoid ambiguity in denials. Failure to do so is considered
embarrassing. It is acceptable to state that the defendant has no knowledge of the
facts alleged, does not admit them and puts the plaintiff to the proof of them. Some
legal practitioners consider that it is redundant to state that the party is put to the proof
of the allegation. This is an essential implication from the previous denial.
Occasionally, legal practitioners make tactical denials. These may be dangerous as a
judge may object to them so caution should be exercised in this regard.
Legal drafting 2/21
Ltd v Ford & Ors HH-156-93]. Costs have been awarded against an applicant who
embarked on a trial by affidavit [OG & M A Tselentis v SDA Trading Co (Pvt)
Ltd HH-176-91].
The first step in drawing affidavits for an application is to decide what issues are
material to your case. Having done this it will be necessary to ensure that all the
evidence is available to prove the issues.
When drawing the opposing affidavits, it is necessary to analyse the founding
affidavits to see whether a case has been made. As far as possible you should then deal
with each allegation setting out your clients reply to it.
It is often difficult to prepare a reply to poorly drafted affidavits due to irrelevant,
argumentative or inadmissible allegations. It is suggested that such allegations should
be ignored save for a statement that no response will be given because of their nature.
If the founding affidavit is illogical, it may be easier to set out your clients version
without following the order adopted by the applicant. However, if this is done, it is
essential to ensure that no points are overlooked and it is probably wise to explain why
this approach is being adopted.
A founding affidavit for an application should follow the formula set out.
HEADINGS
APPLICANTS AFFIDAVIT
1. I, ..., in my capacity as ..., of ..., make oath and swear that the facts of
this matter are within my knowledge and I am authorised to make this
affidavit.
2. The Applicant is ....
3. The Respondent is ....
4. The Applicant seeks an order that ... as set out in the draft order
which is annexed as Annexure ....
5. The facts upon which the Applicant relies are:
5.1 ...
5.2 ...
6. In the circumstances, the Applicant respectfully seeks an order in
terms of the draft order.
Drafting of letters
Lawyers write numerous letters and it is important that consideration is given to the
manner in which they are presented and drafted. The appearance of a letter may be as
important as its contents: a scruffy and poorly typed letter with spelling mistakes is
unlikely to have much impact, however good its contents.
Legal drafting 2/23
Appearance
In Zimbabwe, letters are usually typed on A4 or A5 sized paper. The latter is half the
A4 size. A good typist should know the layout requirements but many do not and so
they are set out here.
The style of typing in the letter should be consistent throughout. The most usual is a
blocked style which means that there is no paragraph indentation. The spacing of the
typed information is important.
It is essential that both the writers and the recipients references are inserted and that
the date is included.
If there are any enclosures this should be noted at the foot of the letter below the
signature.
A4 letter
There should be 3 carriage returns between the date, the reference, the address and
Dear Sir. Thereafter, there should be two carriage returns save between Yours
faithfully and the name of the firm. This space will depend on the size of the
signature of the writer.
If a letter covers more than one page, the page number, the addressee and the date
should be typed at the top of the second page. This is to ensure that if the pages
become detached, it will be easy to collate them again.
A sample of an A4 letter is attached as Appendix 2.
A5 letter
There should be 2 carriage returns between the date, the reference, the address and
Dear Sir and all paragraphs. The number of carriage returns between Yours
faithfully and the name of the firm will depend on the size of the signature of the
writer. A sample of an A5 letter is attached as Appendix 3.
Third Constituency
In his book Client Interviewing for Lawyers Avrom Sherr says at page 137 that
lawyers should always remember that their letters may be read by someone else other
2/24 The Civil Practice Handbook
than the recipient, eg a court. It is essential, therefore, that great care is taken in
drafting all letters. The lawyer should understand his objectives in writing the letter
and keep to them. The letter must be well planned and analysed to ensure that there are
no ambiguities or errors.
Contents
When a letter is used to explain to a client procedures to be adopted, it may be useful
to have standard forms which set these out. For example, the procedures on the sale of
a house could be set out in a standard form which would be annexed to the initial letter
to the client. This would avoid the necessity of each lawyer repeating the information
in respect of every sale and would also reduce the possibility of errors being made.
The public relations aspect of letters is also important. A lawyer should avoid the
impression that he is personally involved in a matter. For example, in a letter of
demand it is probably preferable to say that the client has instructed the lawyer to
issue summons not that the lawyer will issue summons if payment is not made.
Gower suggests that once the letter is written, the following questions should be asked
by the draftsman.
1. Can the language be easily understood by the recipient?
2. Is it free from slang?
3. Are the words the simplest that can carry the thought?
4. Is the sentence structure clear?
5. Does it give only the essential facts?
6. Does it include only essential words and phrases?
7. Is the information correct?
8. ...
9. Is the writing free from errors in grammar, spelling and punctuation?
10. ...
11. Does it answer all the questions?
12. Is the writing free from antagonistic words and phrases?
13. Is it, where appropriate, tactful, helpful, courteous, sympathetic, frank, forceful?
14. Will the tone bring the desired response?
[See page 39.]
Drafting of opinions
The purpose of an opinion is to advise the client on his case. To achieve this end, it
should be as lucid and as simple as possible in the circumstances. Many opinions,
however, bear a marked resemblance to a university essay. After all the work which
goes into the research, many lawyers are reluctant to omit anything, while they tend
also to set out their own doubts about the answer rather than give their opinion.
Legal drafting 2/25
Generally, opinions are quite lengthy and the conclusion is set out in the last
paragraph. What a client usually wants is the conclusion at the beginning and the
reasons later. Thus, it is often preferable to state the problem and follow this with a
summary of the advice at the beginning of the opinion.
The summary should be followed by a recitation of the essential facts. This has two
benefits. It ensures that the client knows the lawyers understanding of the facts and is
useful at a later stage, when the facts may not be so familiar, to set the scene for the
rest of the opinion.
Once the facts have been stated, the issues should be stated and then the legal
practitioner should set out the law and how the law is applied to the facts. The citation
of large numbers of cases is not generally needed by the client. It is better to cite only
the most important cases and, while an apt quotation may neatly summarise the law,
one should avoid numerous lengthy quotations.
Where the law is uncertain or the legal practitioner has doubts, this should be stated
but the legal practitioner has a duty to advise his client properly and this means that he
must commit himself to the best alternative. If a client comes to the end of an opinion
and does not have a reasonable guide as to what to do, the opinion is poor.
Where appropriate, the various options open to the client should be stated and the
advantages and disadvantages of each analysed. The lawyer should also indicate
which he considers the best with his reasons for his opinion.
The opinion should be concluded with the lawyers view of the matter and a reasoned
argument showing how he reached that view.
SOURCES
Harms LTC, Amlers Precedents of Pleadings, 4th Edition, Butterworths & Co (SA) (Pty) Ltd
Gowers E, The Complete Plain Words, Pelican
Harding Boulton B, The Making of Business Contracts, 2nd Edition, Sweet & Maxwell
Newman E & McQuoid Mason DJ, Lee and Honor South African Law of Obligations, 2nd
Edition, Butterworths & Co (SA) (Pty) Ltd
Isaacs I, Becks Theory and Principles of Pleading in Civil Actions, 5th Edition, Butterworths
& Co (SA) (Pty) Ltd
Morris E, Technique in Litigation, 2nd Edition, Juta & Co Ltd
Piesse E L and Gilchrist Smith J, The Elements of Drafting, 3rd Edition, Stevens & Sons
2/26 The Civil Practice Handbook
APPENDIX 2: A4 LETTER
LETTERHEAD
....
....
....
4 April 1995
Dear Sirs
We have sent a letter of demand to AA giving him 7 days to make payment and if he
fails to do so, we will issue a summons and instruct the deputy sheriff to serve it on
him.
We enclose a pamphlet which details the procedures in a High Court collection. You
may find this useful. Should you have any queries, please contact us.
Yours faithfully
ABC
Enc
Legal drafting 2/27
APPENDIX 3: A5 LETTER
LETTERHEAD
....
....
4 April 1995
Dear Sirs
Yours faithfully
ABC
Enc
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