Thursday, 16 July 2009

Fun with contracts

I've just finished a 3-day teacher training course - Teaching Legal English - which went very well, but which completely took over my week. (Apparently it's been hot and sunny ...)

One of the great things about teacher training is that it forces you to hunt back through your old materials from years ago, looking for inspiration. This week I stumbled across some work I did about 5 years ago, when I first got involved in legal English. Like most materials writers, I tend to dismiss my old work as hopelessly naive and embarrassing, but revisiting old stuff can remind you that it wasn't so bad after all.

Anyway, the materials I found related to extracts from contracts - how to understand them and how to write them.

The first exercise is about commas: students have to draw lines to show relations between different types of commas: list commas (e.g. A, B and C) and enclosing commas (e.g. ... including, but not limited to, the following ...).

Sorry if you can't read it clearly - I've copied the text below this paragraph just in case. Anyway, the point is, when you've done the intial matching, you find you're left with about 4 commas that don't match up with anything ... or rather they match up with each other over long distances. In the above extract, for example, the comma before "in each case" leads all the way back to the one after "expenses", 5 lines above. This sort of untangling exercise REALLY helps me to understand the complex relationships within monster sentences like the one above. So I guess they should help students too, not only when reading such sentences but also when drafting their own.
(a) The Partnership shall indemnify, to the fullest extent permitted by law, the General Partner and its officers, directors, employees, partners and agents ("Indemnified Parties") from and against all costs and expenses, including attorneys' fees, judgments, fines, settlements and/or liabilities incurred by or imposed upon any Indemnified Party in connection with, or resulting from, investigating, preparing or defending any action, suit or proceeding, whether civil, criminal, legislative or otherwise (or any appeal thereof), to which any Indemnified Party may be made a party or become otherwise involved or with which any Indemnified Party may be threatened, in each case by reason of, or in connection with, the Indemnified Party being or having been associated with or otherwise acting for the Partnership, or having acted as a director, officer, employee, partner or agent of any Entity in which the Partnership had invested, or by reason of any action or alleged action, omission or alleged omission by any Indemnified Party in any such capacity, provided that the Indemnified Party is not ultimately adjudged to have engaged in gross negligence or wilful misconduct, and provided further that the Indemnified Party acted in a manner that he reasonably believed to be in, or not opposed to, the best interests of the Partnership.
Before I move on, did you notice the mistake in the above clause? I'll tell you at the end. (It's very satisfying when a mere English teacher can find holes in an apparently beautifully-crafted legal text.)
OK, here's the next one:
Students have to complete the boxes, using this sentence from a contract:
During the course of your employment and following termination of your employment for any reason, you are required not to use, reproduce or disclose to any person, firm or company any information coming into your knowledge or possession which relates to the affairs or the business of Shark or any client or to the work performed by you, …
Again, this is really useful for understanding complex relationships within long sentences. (Speaking of which, can you spot the mistake when I made this 5 years ago?) Once the diagram's complete, of course, you can also get students to cover the text and recreate it orally or in writing using only the diagram. As a follow-up, get students to create their own diagram of a different sentence. And then get them to draw a diagram using their imaginations (based on, say, a role play) and then use the diagram to write a perfect sentence/clause. Fantastic!

The third example is very similar to the last one, but the answers are already filled in.

Again, here's the sentence it was based on:
C. The Company possesses, and will continue to possess, information that has been created, discovered or developed by, or otherwise become known to, the Company (including, without limitation, information created, discovered, developed or made known by me during the period of or arising out of my employment by the Company, whether before or after the date hereof) or in which property rights have been or may be assigned or otherwise conveyed to the Company, which information has commercial value in the business in which the Company is engaged and is treated by the Company as confidential.

How about cutting it up (each box on a separate slip of paper) and giving students some string and glue, as well as the original paragraph, so they have to physically move the pieces of paper around and show the relationships with string ...
A bit too TEFLy, perhaps ... but let me know if you try it (or any of the other activities)!
OK, I promised to tell you about the mistake in the first contract clause. It's here:
... any action, suit or proceeding, ... to which any Indemnified Party may be made a party or become otherwise involved or with which any Indemnified Party may be threatened ...
There's a mix-up with prepositions: party to, OK, threatened with, OK, but involved to?
As for the second exercise, my mistake was to have the 'why' arrow pointing from the wrong box. For whatever reason relates to termination of your employment, and not, as I've shown it, required not to. Oh well, you live and learn ...
One last thing: the contracts all come from, a fantastic free source of thousands of authentic contracts and legal documents.


  1. Hello!
    I get the impression that text 1 was drafted by somebody who had half taken on board the arguments of the "Plain English" campaigners and peppered it with commas - the most traditional kind of drafting would have almost no punctuation.
    Followers of this site might also enjoy the onecle blog:

  2. Hi j

    Yes, I think you're right. I can't imagine trying to untangle such a paragraph without the help of commas. Shame the drafter of the contract didn't read the advice about keeping sentences short ...

    PS Thanks for the link to the onecle blog. Looks great.