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The Importance of Legal Drafting for Private Contracts

The Importance of Legal Drafting for Private Contracts

Introduction 

This topic is rarely encountered by experts despite its importance and significance. The way contracts are drafted is not academically taught at universities, however it has to do with the experience and expertise such as being able to grasp everything in the agreement, its conditions, and the discussion between the two parts. The negotiations should be deep and should express both parts wills. The expert must take into consideration that the other part is not specialized in law, so the former should go deeper into words and analysis. Besides, the one who is going to prepare the contract should also be aware of the context of the contract, the legal texts which will be applied as well as the difficulties that will encounter both parts of the contract later. The contract stands for a constitution that planifies the relationship between both parts, accordingly its terms should be enough to settle any dispute even if that happens between the two parts.

In fact, the intellectual property, that qualifies any one to prepare contracts, has to do with the person’s capacity to look into the different texts and laws that organize the contract whether the text is civil, commercial, or administrative.

Undoubtedly, one of the most important criteria of the contract is an existing balance of rights and commitments between both parts, that is to say, the one who is meant to prepare the contract should not be on the side of any part since he is meant to be a fair judge. 

Plan

In this research we will focus on three parts:

Part1: Definition of Contract Drafting and its Impact on the Contract

1-Definition of Contract Drafting

2-The Impact of Contract Drafting on the Contract

Part2: The Steps of Contract Drafting 

1-The Step of Preparation and division into parts

1-a-The Interaction between the One Who Asks for the Contract and the One Who Prepares the Contract

1-b- The Preparation of the First Draft of the Contract

2-The Step of Preparation

Part3: The New Characteristics of Contract Drafting

1-The Form and the Style of the Contract

2-Offer Method

a-Meticulous Organization of the Contract Organization

b- Articles Numbering

c-Clarification of Drafting

d-Correction of Drafting and the aim behind it

e-Contracts Documents

Part1: Definition of Contract Drafting and its Impact on the Contract

Language is the only means that conveys meaning and ideas between people and the contract is a tool through which people can exchange ideas agreed upon by both parts.

Thus, the contract drafting as well as its different articles must be expressive so that the contract can serve its social and economic function in society.

1-Definition of Contract Drafting

Contract drafting is the expressions and words used in the contract in order to express the wills of both parts and to convey all these expressions for anyone, whether legal expert or not. Thus, it is important that such expressions must be chosen carefully without prejudice to those agreed on in legal drafting in order to avoid any differences in explaining contract articles. Here, the good contract drafting is going to be distinguished from other draftings. We should always take into consideration that a good drafting of the contract is highly important as it is the main reference for the agreement.

A good contract must be written properly and the aim behind this is to express the wills of both parts within the contract framework and what they want to say as the contract represents the only way through which they can express themselves. 

In this context, the first paragraph of article number 169 of Qatar Civil Law mentions that the words of the contract should be clear in order to mean the wills of the contractors. Article 193 of the Kuwaiti Civil Law and Article 150 of the Egyptian Civil Law focused on the importance of a good performance of contract drafting.

The contract is about an agreement between two parts, what follows is that its drafting and its basic main criteria of foundation should be meticulous when talking about the rights and the commitments of each part otherwise all these rights will be lost. 

This is best illustrated by this quote of the Supreme Court:

“It is known that the consensual contracts are made as soon as the answer is related to the approval and the considered answer in this context is the offer that includes the will of contract conclusion and it should include at least the contract and its main criteria.”

Appeals Numbers 138, 84,2002 labor sessions 10,6,2002

Group of legal roles decided by the Supreme Court of Kuwait

Part 5, Volume8, page 469, article 2

Undoubtedly this arbitration mentions the importance of drafting, shows what is important to be considered while drafting any contract, this is exactly what shows the definition of drafting and its importance for any contract.

2-The Impact of Contract Drafting on the Contract

It goes without saying that the contract has a power for both parts and for this reason article 171 of Qatar Civil Law mentions that the contract is the only link between both contractors, thus it should not be cancelled or adjusted unless there is the agreement of both parts or out of reasons decided by law, this is best justified by article 196 of Kuwait Civil Law and Article 147 of Egypt Civil Law. 

The contract drafting should specify its criteria which are agreed upon by both parts as well as the commitments and rights, otherwise the latter will cause disputes and even some rights will be lost.

Article 172 of Qatar Civil Law mentions that the contract should be worked on as it is agreed on. This may happen only if the drafting of the contract is achieved perfectly. Indeed, this shows the importance of contract drafting. Whatever language used in the contract, the one who writes the contract must choose words and expressions carefully. The most important thing in the contract is meanings not words and this is why the words must comply with the meanings that both parts of the contract aim at.

Part2: The Steps of Contract Drafting

Contract drafting has a lot of steps that goes through so that this drafting will be achieved in a correct way. The aim behind this is to include the wills of both parts, their aims behind the contract, and the legal points emerging from this contract.

1-The Step of Preparation and Division into Parts

The step of preparation requires the interaction between the parts of the contract and the one who prepares it and this also needs a direct communication between its different parts and a good listening of their expectations including its commitments and everything related to rights. This step is divided to three parts:

1-a-The Interaction between the One Who Asks for the Contract and the One Who Prepares the Contract

The one who is meant to draft the contract must know the will of the contractor so that the former can decide about the most suitable decisions that may achieve this will. The former also must ask for more information and mainly those that he consider necessary to specify the topic of drafting and the lawyer also must have at least some information.

If the topic of the contract is about distributing specific goods in a specific country, thus the lawyer must get some information from both parts in order to specify the suitable legal framework. In this case, the lawyer will be given different contracts like commercial agency, commercial delegation or commercial distribution and he will show the client a list including some topics of this contract so that the contractor will provide his information and suggestions. Accordingly, the main points of the contract will be specified as well as its main elements that the lawyer noticed out of discussing with both parts and writing some points.                             

1-b- The Preparation of the First Draft of the Contract

The one who is supposed to write the contract is supposed to prepare the first draft which includes the necessary elements of the contract that will be later on organized. It is may be common that those who prepare the contract sometimes refer to some samples, however in this case they should not be abided by these samples when preparing the first draft. 

The importance of the first draft is that it helps the one who prepares the contract to organize its parts and guide him to discover other parts so that the contract will be have a logical development and form. The first draft also helps to gather all the elements of the contract to be ready for the final draft.

2-The Stage of Drafting

After specifying the most important points in the first draft, the lawyer should start working on the important expressions in a separate paper so that he can gather this in a smooth way in order to be written again. The lawyer must also review the first drafting so he can discover any mistakes.

A good drafting requires to take into consideration all the important parts of the contract and its characteristics.

In another step, there will a whole review of the contract as the one who prepares the contract starts scrutinizing the whole contract in order to check its parts and the transition between them, the missing parts or anything to be added by the client.

The lawyer must choose suitable words in order to facilitate for clients to understand the articles of the contract and its meanings.

Part3: The New Characteristics of Contract Drafting

1-The Form and the Style of the Contract

A good drafting is made through a good choice of form, a good demonstration of ideas, a good drafting, the use of fundamental language roles, a good mastery of sentences construction, as well as a good use of expressions. The choice of words must be clear and with a good choice of technical concepts.

The lawyer also must use words that convey a specific meaning to make the interaction between both parts and to avoid any misunderstanding. Actually, one word has different meanings, this is why its choice must be meticulous. 

2-Offer Method

a-Meticulous Organization of the Contract Organization

The organization of the document and its articles must be logical and well-planned in order to facilitate the reading, the understanding and the search for any idea or point. This requires to follow a smooth plan to gather ideas and write them by order. In the sales contract, at first, they mention the introduction and the parts, second the price and the deadlines, thirdly the seller commitments, then the guarantees and finally the sanctions.

All parts of the contract should go hand in hand in order to convey meanings without contradictions and this requires at first accuracy and a focus on the framework of articles. If the topic of the contract requires a role and an exception, this must be mentioned in parallel. If an article will be drafted based on the content of another article, this should be mentioned in the first article.

The subheadings can be used in collecting arbitrations. Each title can be given to an article in order to facilitate the topic referred to in the paragraph. However, these subheadings should not change anything in the content of the contract and should not impact the rights and commitments of its parts.

b- Articles Numbering

Articles numbering is considered as an important procedure required by the logical organization of the contract provisions. The simple way of numbering is using numbers, alphabets, another method known as decimal numbering and the latter is considered as an easy way to know the page of the article and it helps make other divisions without numbers which are considered as the main parts of the contract.

c-Clarification of Drafting

In order to have a correct drafting it should express the both parts wills which is achieved through a good understanding which is translated through words to a well-written contract. Thus, the one who prepares the contract must take into consideration the smoothness of ideas upon which the contract is based and ideas should not be removed.

The best way to guarantee a good drafting is to use a clear way of writing the contract and nothing must be left implicit, however to guarantee the rights of the one who writes the contract both parts must sign in the contract and agree on its content.

The idea must be a means for communication and interaction not for disputes and this is achieved through conveying the meaning through choosing specific expressions. This role has to do with the very first steps of drafting and it applies on the final ones when both parts agree to sign the contract. The first steps also include the interaction between both parts so that the one who prepares the contract will have a good knowledge of the contract.

d-Contracts Documents

The name “contract documents” applies to all documents related to the contract while drafting even if they are not a part of it. The contract drafting may need some negotiations that may be written in reports or agreements. The parts of the contract may distribute into different documents, the way as some contracts can be written in general conditions including a typical document as insurance contracts. Besides, there may happen some correspondences before signing the contract, if they occur during negotiations, they are not considered as a part of the contract. It is important to take into consideration that these reports may include some hints about the agreement of both negotiations parts concerning one point, in this case it is not allowed to claim anything against what is agreed upon in the contract. The writing of documents, before signing the final contracts, includes the agreement on all its elements which are not supposed to have further negotiations. The question to be asked here is the extent of its entrance in the scope of contract, that is to say, its consideration as a document of the final contract.

After writing the contract, there may happen some adjustments out of some conditions, this will be proved in other annexes.

The main documents of the contract consist mainly of the official document and other documents written before or after the official one.

It is important to focus on the smoothness between the documents of the contract and to avoid any difference between them and to check it is written in the contract that these documents stand for a part of the contract itself or not.

There are some documents which legal elements must be taken into consideration whether while drafting them before signing the final contract like letters of intent or after drafting. These documents are divided into two parts:

*Documents before signing the final contract

*Letters of Intent

the concept of letters of intent is meant for different documents which are written before signing the final contract. The origin in this concept is to express the suggestions of one of the contract parts whether concerning one of the contract topics or negotiations about it. Thus, the letter of intent includes the will of one of the parts or both to have the contract.

The speech may include the commitment of one of the contract parts of the final draft which is meant to be signed to provide a contract project or prepare a specific study, yet the legal importance of this contract depends on the style of writing of speeches. Accordingly, there should be given a special attention to the letters of intent to facilitate its legal meaning and its impact.

There are different types of intent letters:

Speeches that include the will of the one who writes the contract, they include the main suggested elements that he sends to the other part to be accepted or discussed and this includes also speeches claimed by the part that prepares the bidding one of its members to gain and to be asked to sign the final draft.

Speeches that include agreements related to the negotiation period and this is related to the roles of procedures (such as appointments and locations) and limited to the commitments related to it such as the commitment to confidentiality and disputes settlement.

Speeches that prove agreements, which are reached during the period of negotiations and related to the elements of the final topic.

Documents including real contracts however its writers, who are usually business men consider them as letters of intent such as documents which include all deal details but it can be held out of some criteria such as the agreement of the public authority or the company administrative council.

Conclusion:

Contract drafting is considered as a typical work that necessitates the most suitable ways to achieve its aims through a good communication between its parts.  Thus, the lawyer or the one who is supposed to write the contract must work on that by himself without referring to any ready drafts. The client who wants to have the contract should ask for an initiative including some privileges including the first draft which mentions the topic of the contract, this, indeed, has a psychological effect resembling to the first impression and its claims.

The one who writes the contract should be qualified enough to know what may encounter such as professional problems while writing the contract. In fact, such problems may cause later on disputes between the parts of the contract. Thus, the one who writes the contract should take into consideration its provisions and its articles in order to maintain the rights and the wills of both parts.

Copying from other contracts represents a big mistake for the client as well as the contract itself. Drafting a contract necessitates a good mastery of its characteristics and a focus on all its different parts. Thus, the one who is supposed to write the contract should not deny his responsibility and rely on others or this is considered as a breach of trust.

It is clear that the drafts prepared before do not include the special conditions for each case and thus they do not represent the wills of both parts.  `

The one who is supposed to write the contract should avoid a word to word translation used in samples of contracts and in case needed he must make some adjustments regarding to the conditions of the contract and the characteristics of drafting whether by deleting some of its conditions or adding some others. While making these adjustments, he must take into consideration that such adjustments should go hand in hand with the other parts of the contract. 

References 

Index

Lawyer : Abdulrahman Alhouti