Don’t laugh -- confusing language has gone on long enough, agreed? But you can fix this!
The legal opinions in this article are the author’s own, not WorldCC’s, and this is not legal advice.
Just for fun, set your eyes on a long, complex clause in your contract – one that’s bursting with legalese! Then give that fat, wobbling clause the acid test of clarity by reading it to a ten-year-old. He runs away, right? Look at that clause again. How would you simplify it to a child? Are you willing to produce the contract clarity you, your colleagues and customers need -- and need very badly? That’s the crux of this article -- to prove why and how you need to simplify complex subjects for a less experienced reading audience. If you’re responsible for a contract, you should know who will use it. And when you simplify -- not only do you make your contract clearer – you also improve your creativity in a challenging way.
A charming contract speaks clearly
I want to share a revelation with you. I was reading a contract one time and saw this: “For example…”
That clause was explaining an eventuality and then added an example to illustrate the point. How quaint! But it cuts to the heart of the matter -- drafting a contract should be clear and easy to understand. We all talk about the need for contract clarity, but it’s not always applied.
Going back to “for example,” I found it charming and surprisingly useful. Although it shouldn’t be surprising, really. In writing, a concept known as the ladder of abstraction was coined by linguist S. I. Hayakawa in his book Language in Thought and Action1 to describe how we think in different levels of abstraction which contrasts with the word concrete.
At the bottom of the ladder sits the concrete -- numbers, examples, details. You say, “The man was donating 10% of his wealth every year to various charities.” It’s concrete, a number specifically describing an action.
But if you climb higher up the ladder you move to abstract. Which means “He was known for his great generosity and goodwill.” Here you didn’t use any examples or numbers; you used abstract concepts such as “generosity” and “goodwill”. Both the concrete and abstract are essential tools in the writer’s toolkit, and the hallmark of a capable writer deftly alternates between them.
Your contract climbs up and down the ladder
A contract is a form of writing too, isn’t it? Why don’t we apply the ladder of abstraction to contracts then, to make them clearer, keeping in mind we can use too much abstraction or too little.
Here’s an example of a text (clause) that is too abstract.
“Company X’s personnel may be replaced at Company Y’s sole discretion if Company Y discovers they are violating Company Y’s code of conduct or if they damage the facilities, equipment or tools on Company Y’s premises.”
This clause is not specific as to what and where damage is occurring, not to mention that the “code of conduct” might be unknown to outsiders and tells them nothing about the complaint. How about giving an example of the above clause with more concrete, specific wording like:
“For example, (1) scratching any of Company Y’s vehicles by way of negligent parking; (2) Not properly disposing of Company Y’s confidential information disclosed to Company X’s personnel, such as not shredding company-proprietary documents when they are no longer needed.”
See number 2 there? Underlined phrases reinforce what employees are not doing correctly! Isn’t that much clearer than throwing together lumps of abstractions? This could also become fertile ground for various misinterpretations that could make it necessary to provide a long list of definitions.
Also, being specific rather than abstract directly responds to certain fears you are trying to avoid. In this case, Company Y has suffered from the bad parking skills of the companies it allows on its premises. It also suffers from Company X leaving confidential documents exposed on their temporary desks. So instead of relying solely on the abstract concept of warning them not to violate some code of conduct (which might not be read or remembered) or relying on a vague notion of “causing damage to facilities,” you can cut to the chase and list the most prominent concerns as examples, and then back this up with the abstract clause. The clause plus the list of rules provide maximum clarity.
But puzzlingly, when it comes to producing a clear contract, some write it as if they are the only ones who will read, interpret, and apply it. Take this clause for example:
“Acceptance Procedure: upon completion of the Deliverables for each milestone as agreed in Appendix 1, Company A shall, at its own cost, inspect the Deliverables relevant to such milestones to ensure conformity to the specifications stated in the Purchase Order, and shall, within 10 business days from the date of delivery, inform Company B if they are accepted or rejected. Acceptance of the Deliverables shall be based on a signed delivery note bearing the signature of Company A’s authorized representative as stated in article 5 (Representatives), and no acceptance of any delivery shall be considered valid without such signature. Notwithstanding anything to the contrary, if Company A rejects any of the deliverables for whatever reason, Company B shall be obligated to correct all defects and re-supply all deliverables in a manner consistent with the comments of Company A and with the specifications and quantities in the relevant purchase order.”
Now, when you first read this, can you quickly name the most important parts of that section? Most likely you won’t. Why would anyone write something like this? Maybe they were following certain legal conventions, or following the misguided notion that complexity equals professionalism; or trying to impress their bosses -- who knows?
Einstein’s advice, and Michael Scott’s mistake
Simplifying specialized and complex subjects is not a new concept. Einstein said, “If you can't explain it simply, you don't understand it well enough,”2 which contains a great deal of truth for contracts. Simplifying quantum physics to a child is a prodigious challenge, but as many books and even the Simple Wikipedia3 has shown, you really can simplify complex subjects to an inexperienced audience.
If you’re responsible for a contract, who is your audience?
It’s a crucial question, so important that many activities – drafting a contract, writing a speech, editing a book, designing a product, creating an ad campaign – would be nearly impossible to accomplish effectively if you don’t know who the audience is. If you are writing a book, is your audience a scholarly group or the average person? Each one would drastically change your content and presentation. You can learn a lesson from the NBC’s US television series featuring The Office with fictional character and protagonist Michael Scott4 who was constantly under the illusion that the entire world was a comedy audience just waiting for him to perform comedy routines, and even his meetings, speeches and employee evaluations were done with that assumption!
So again, who is your contract for? Is it for you only? Not possible. Even if you work in a very small organization where you are the only person who will ever deal with the contract, there is at least the other side you’re contracting with. Your contract will most likely be needed by the finance department, the legal department, and the higher management. If a serious dispute occurs, it will be reviewed by an arbitrator or judge. In short, people need your contract to be very clear without them having to understand the conventional contractual/legal terms. Treat them all like ten-year-olds. If I was one of them, I would love you if you treated me like one!
Here’s one more example of an overly complex clause followed by simplified revisions:
“Notwithstanding anything to the contrary, and provided that Company A produces documented evidence that Company B has satisfactorily completed the deliverables, the Deliverables shall be considered accepted, subject to Company B’s written confirmation.” Clearer alternatives if we were to explain this to a ten-year-old would be:
- Instead of “Notwithstanding anything to the contrary” clearer wording could be “In case of a contradiction, this clause prevails.”
- Instead of “and provided that Company A produces documented evidence that Company B has satisfactorily completed the deliverables” better wording might be, “Company A must prove in writing that Company B performed its job as stated in the Contract.”
- Instead of “subject to Company B’s written confirmation” clause wording might be, “And Company B must agree in writing that the Deliverables are accepted by signing an acceptance form or confirming by official email.”
You can improve these and simplify them even further. Let your ingenuity do its magic!
Clarity is king
It could be challenging to simplify the level of writing you’re used to but in my opinion, it will do wonders for your contract’s quality. Whether it’s a financial person trying to figure out the tax obligations or payment terms in the contract, or an arbiter trying to make sense of some conflicting or vague parts, or a compliance officer ensuring the contract is in line with certain rules, or a legal counsel making sure some applicable laws and regulations are reflected – no matter who views your contract, everyone will owe you a debt of gratitude for being clear.
ABOUT THE AUTHOR
Ibraheem Alammar, a contract manager, newspaper writer and book author, is a seasoned procurement and contracts professional with 19 years of experience in contracts, purchase orders and Requests for Quotes (RFQs) and Requests for Proposals (RFPs) His previous roles span leading Saudi and global corporations whose needs require utmost diligence and professionalism. His meticulous skill for crafting and managing words extends to literature, as a writer of daily columns in leading Saudi newspapers (Al Riyadh now, Al Jazirah previously), sharing knowledge and insights with millions of readers.
- Wikipedia reference: Language in Thought and Action
- From BraineyQuote
- Simple Wikipedia
- Michael Scott (The Office) NBC television series