Drafting presupposes an extensive knowledge of both substantive and procedural law. The drafter uses the law in a manner unlike that of the brief writer, the memorandum writer, or the litigator. The brief writer uses the law to challenge or justify what has already happened. The memorandum writer uses the law to predict the legal consequences of what may happen. The litigator uses the law to determine how to characterize what has happened in its proper legal form and to then present it in court. The drafter uses the law affirmatively, to accomplish the client's objectives. The client wants to ensure that a sales representative will not go to work for a competitor after the employment is terminated. This is not an especially easy objective to achieve. The law dealing with a covenant-not-to compete is complex, and the drafter must work through the intricacies to produce an agreement that is both effective and enforceable. Or, the drafter may discover that a living will, in its mandated statutory form, will not accomplish all the client desires. The drafter may thus supplement it with a durable power of attorney. In sum, the drafter must know how to use legal rules to meet the needs of the client. Although Chapter 8 more fully discusses how the drafter uses law in the drafting process, the basic principle is to harness the law by drafting clearly into or around existing legal rules and precedents.
The drafter's investigation, however, cannot be limited to the information provided by the client. The client may not know if the property being purchased has had environmental pollution problems, or even realize that this should be of concern. The drafter must anticipate this as a problem, discover the information from other sources, and draft ac cordingly.
Factual conceptualization is a bit more difficult to un derstand. Briefly, it involves envisioning and expressing the facts with the proper degree of generality/specificity, vague ness/precision, and abstraction/concreteness. Choosing be tween these alternatives is an intellectually demanding and difficult task for the drafter.
Contract negotiation and documentation is an exercise in selling. In the process, you are selling three things. You are:
Regardless of type or subject matter, the typical contract consists of the following parts:
The overall organization of a transactional document or group of transactional documents follows a group of rules:
A recital might explain the purpose of the contract. This could be important if one of the parties later tries to avoid the contact under the doctrine of frustration of purpose. Or, a recital might state a mutual understanding Q_f f ct. This could later pave the way for avoidance of the contract under the doctrine of mutual mistake. Facts stated as a recital might also be relevant to whether a breach qualifies as a material breach, since the recital will establish what is important to the parties. For example, if a particular brand of pipe is important to the owner of a house being construct ed, then the recital should indicate this and, to further ensure that a court will strictly enforce the contract, explain why. If the body of the contract contains a "time is of the essence" clause, include a recital that demonstrates why time is so important. Neither the clause nor the recital will ensure that the courts treat lateness as a material breach, but these provisions will certainly help.
Boilerplate and:
Severability Clause. This clause states that if a court declares any part of the contract void, the remainder of the contract is unaffected. The converse of a severability clause is a prohibition against severance and partial enforcement. Whether the clause allows or prohibits severance, in most cases it simply mirrors the contract law default rule that would be applied even in the absence of a clause. That is, if a court has declared one provision void or unenforceable, the court will usually treat the other provisions of the contract as still in force unless doing so would destroy the purpose of the contract or create unfairness. If, however, there is any question about how the default severability rule would be applied if a particular term in the contract is declared void, then the drafter should, by all means, make this express.
Choice of Law. This identifies which state or national law the parties want the court to use in construing and enforcing the contract. Conflicts law provides a default choice. Before deciding whether to alter that, the drafter should carefully compare the law in the various jurisdictions that might qualify. Although the courts generally defer to the desires of the parties on this matter, choice-of-law provi sions are subject to certain limits. Since a court might refuse to defer to the parties choice of law, the drafter should always draft with the default choice in mind.
Modification. Most written contracts require that any changes, amendments, or modifications also be in writing. Although UCC § 2-209(2) recognizes the efficacy of these no-oral-modification provisions, the courts in both sales and non-sales contract contexts are often quite liberal in finding a waiver of the provision. This notwithstanding, NOM claus es may serve a useful prophylactic effect.
No Waiver. The contract may provide that the failure of a party to insist on strict performance in one instance does not constitute a waiver of the right of that party to insist on strict performance if another default occurs. Again, although these provisions are useful in some situations, the courts often circumvent them by finding that the parties implicitly modified the contract through a course of perform ance. The duty of the drafter here is to advise the client of the possible consequences of non-enforcement, the contract language notwithstanding.
Merger Clause. This clause indicates that the contract is the final and complete agreement of the parties with respect to this transaction. If properly drafted, a merger clause will prevent a party from even alleging that the agreement also includes some additional or different terms from another source-usually oral. The common law parol evidence rule performs the same function, but to prevail under that approach usually requires litigation, while a merger clause may forestall such litigation.
Survivability. This provision deals with the effect the incapacity or death of one or more of the parties will have upon the continued validity of the contact and who may enforce it.
Notices. If the contract requires notices, this provision will describe to whom the notice must be sent, where, and by what means.
Liquidated Damages. This is one of the most impor tant of the various boilerplate provisions. Some drafters prefer to put liquidated damages provisions in their own section, along with other remedy provisions such as one expressly stating that a decree of specific performance is appropriate and consented to. Liquidated damages clauses, however, may not be viewed with favor by all courts and the drafter should review the controlling law of the jurisdiction to ensure that the provision is enforceable and will not be construed as a penalty. It should also specify whether or not the liquidated damages are the parties' sole remedy in case of default or breach.
Force Majeure. This clause will excuse delay or dis charge the duty of performance altogether if certain extraor dinary events occur. Natural disasters, war, governmental actions, labor disputes, and unavailability of transportation are commonly included in the list. Formbook force majeure clauses vary enormously, however. Before borrowing a force majeure clause from a commercial formbook, the drafter
To save time and expense, maintain exemplars from prior deals so that they can be accessed and tailored for a new transaction quickly. This is most easily accomplished by maintaining files in word processing format in separate folders on your computer system along with an index listing file names, document title, and comments (e.g. "LeaseLL.txt, Lease of Real Property, Landlord Oriented"). When a similar matter arises, you will be able to consult the index, pull up the exemplar, and proceed to tailor the document to the specifics of the new deal. This technique will greatly speed your revision of the document. If your agreements use generic defined terms for parties and other deal specifics you can then change these items in the preamble and definitions sections, and proceed to review and modify the substantive provisions. Remember, laws and practices change, exemplars do not. Always understand what substantive provisions and legal phrases mean. Do not simply parrot a document. It may be outdated.
Finally, remember that an exemplar from a prior trans action was, at best, right for that transaction, not the current one. It represents a negotiated compromise of issues that were in play in that prior deal. Said another way, it represents an allocation of risk and reward, benefit and burden, between those parties at that time. This being the case, it is best to view the exemplar with a critical, not an accepting, eye and reset the provisions to a neutral position or one that favors your client before proposing the document to the other side./
Often, contracts and other transactional documents re quire amendment after they have been executed. There are three basic methods of amending a contract.
The first is crude but effective: the parties manually change the provisions by hand, striking out or inserting text on the original document and then initialing each change. It may be a good idea to add new signature blocks at the end of the document, or on a separate sheet, where the parties re execute the agreement as amended.
STATUTORYRULES
Statutory Interpretation:-General Principles and Recent Trends
Some linguistic canons are found in Title 1 United States Code, 1-8, General Provisions, Rules of Construction.
Posner, Statutory Interpretation—in the Classroom and in the Courtroom
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Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.
Plain meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."
Rule against surplusage
Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.[22]
Ejusdem generis ("of the same kinds, class, or nature")
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
Expressio unius est exclusio alterius ("the express mention of one thing excludes all others" or "the expression of one is the exclusion of others")
Items not on the list are impliedly assumed not to be covered by the statute or a contract term.[23] However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."
In pari materia ("upon the same matter or subject")
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.
Noscitur a sociis ("a word is known by the company it keeps")
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.
Reddendo singula singulis ("rendering each to each")
"When a will says "I devise and bequeath all my real and personal property to A", the principle of reddendo singula singulis would apply as if it read "I devise all my real property, and bequeath all my personal property, to A", since the word devise is appropriate only to real property and the term bequeath is appropriate only to personal property."[24]
Generalia specialibus non derogant ("the general does not derogate from the specific")
Main article: lex specialis
Described in The Vera Cruz[25] as: "Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so." This means that if a later law and an earlier law are potentially—but not necessarily—in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.
Substantive canons instruct the court to favor interpretations that promote certain values or policy results.
Charming Betsy canon
National statute must be construed so as not to conflict with international law. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains..."
Interpretation in light of fundamental values
Statute does not violate fundamental societal values. See, for example, Holy Trinity Church v. United States,[26] or Coco v The Queen.[27] However, legislation that is intended to be consistent with fundamental rights can be overridden by clear and unambiguous language.[28]
In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant.[29][30]: 296–302 See McNally v. United States, 483 U.S. 350 (1987); See, e.g., Muscarello v. U.S., 524 U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S., 504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977) (Stewart, J., dissenting); See United States v. Santos (2008).
Avoidance of abrogation of state sovereignty
See Gregory v. Ashcroft;[31] see also Gonzales v. Oregon;[32] see also Nevada Dept. of Human Resources v. Hibbs,[33] except where such would deprive the defendant of bedrock, foundational rights that the Federal Government intended to be the minimum floor that the states were not allowed to fall beneath; Dombrowski v Pfister.[34]
'Indian' canon
National statute must be construed in favor of Native Americans. See Chickasaw Nation v. United States, 534 U.S. 84 (2001): "statutes are to be construed liberally in favor of Indians with ambiguous provisions interpreted to their benefit." This canon can be likened to the doctrine of contra proferentem in contract law.
Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility.
Deference to administrative interpretations (US Chevron deference)
If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Avoidance canon (Canon of Constitutional Avoidance)
If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.[35][36]
The avoidance canon was discussed in Bond v. United States when the defendant placed toxic chemicals on frequently touched surfaces of a friend.[37] The statute in question made using a chemical weapon a crime however, the separation of power between states and the federal government would be infringed upon if the Supreme Court interpreted the statute to extend to local crimes.[38] Therefore, the Court utilized the Canon of Constitutional Avoidance and decided to “read the statute more narrowly, to exclude the defendant’s conduct.”[39]
Avoiding absurdity
The legislature did not intend an absurd or manifestly unjust result.[40][41]
The application of this rule in the United Kingdom is not entirely clear. The literal meaning rule – that if 'Parliament's meaning is clear, that meaning is binding no matter how absurd the result may seem'[42] – has a tension with the 'golden rule', permitting courts to avoid absurd results in cases of ambiguity. At times, courts are not "concerned with what parliament intended, but simply with what it has said in the statute".[43] Different judges have different views. In Nothman v. London Borough of Barnet, Lord Denning of the Court of Appeals attacked "those who adopt the strict literal and grammatical construction of the words" and saying that the "[t]he literal method is now completely out-of-date [and] replaced by the . . . 'purposive' approach".[44] On appeal, however, against Denning's decision, Lord Russell in the House of Lords "disclaim[ed] the sweeping comments of Lord Denning".[45]
For jurisprudence in the United States, 'an absurdity is not mere oddity. The absurdity bar is high, as it should be. The result must be preposterous, one that "no reasonable person could intend"'.[46][47] Moreover, the avoidance applies only when 'it is quite impossible that Congress could have intended the result... and where the alleged absurdity is so clear as to be obvious to most anyone'.[48] 'To justify a departure from the letter of the law upon that ground, the absurdity must be so gross as to shock the general moral or common sense',[49] with an outcome 'so contrary to perceived social values that Congress could not have "intended" it'.[50]
When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.
Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, aka "Last in Time")
When two statutes conflict, the one enacted last prevails.
See implied repeal and derogation.
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Intent Controls
This is the cardinal rule of interpretation. Intent con trols, whether it is the intent of the legislature in passing a statute, the intent of the testator in writing a will, or the intent of the parties in making a contract. But intent is really a conclusion, not a fact. The question is: How should a court determine intent? The courts follow two radically different approaches in answering that question.
The Plain Meaning or Four Corners Rule. Un der this rule, a court must interpret a document by the plain meaning of the words that lie within the four corners of the document. Common words are given their ordinary dictio nary meaning, technical words are given their specialized meaning, and sentences are construed by reference to the rules of grammar and punctuation
The Mischief Rule and Other Evidences of Intent. Justice Oliver Wendell Holmes once noted that a "word is not a crystal, transparent and unchanged, it is the skin of a Jiving thought and may vary greatly in color and context according to the circumstances and the time in which it is used." Holmes and his band of jurists did not think much of the plain meaning rule. Rather, they believed that if intent is the controlling consideration, then every thing relevant to ascertaining that intent should be consid ered. As the Restatement of Contracts, Second, puts it, "Words and other conduct are interpreted in the light of all the circumstances "
Chief among the circumstances this school of interpreta tion relies on in construing statutes is the harm or mischief the legislation was intended to correct or the good it was designed to achieve. Indeed, an extreme variant of the mis chief rule goes beyond direct purpose and looks at the spirit of the legislation. This approach is sometimes referred to as the "Ho United States, in violation of the literal words of a federal statute that was apparently intended to stem the tide of immigration. ly Trinity Church Doctrine," named after a case involving a New York City church that retained the services of a new rector and prepaid his passage from England to the
Effect on Drafters. The drafter should keep both the plain meaning rule (with its exceptions) and the mischief rule in mind and recognize that it is impossible to predict which approach a court might take in any particular case. The drafter's object, however, is to control the outcome. This has several consequences.
First, the plain meaning rule imposes an obligation on the drafter to use language that does indeed have a plain meaning. This effect in itself is a highly desirable one. Speaking to Justice Sandra Day O'Connor about an interpre tation the Supreme Court gave a certain federal statute, Senator Warren Rudman said, "Congress gets very upset sometimes when you interpret statutes exactly as we have written them."
Second, if the drafter intends for the courts to take a plain meaning approach to the interpretation of the docu ment, then the drafter should consider using express words to that effect. This can be done with a simple statement that the words of the document are to be given their ordinary meaning and by specifically excluding other possible evi dences of intent.
The Rule of Expressio Unius Est Exclusio Al terius
"The expression of one thing is the exclusion of anoth er." This rule creates a negative inference that, when a document lists certain things, the list is exclusive. Suppose, for example, that a county ordinance gives Park Directors general powers to enact rules affecting the use of their parks. The ordinance also specifically provides:
A Park Director may prohibit motorcycles, mopeds, go carts, and other motorized vehicles on park trails that are within 100 yards of a camping area.
Does a Park Director also have the power to prohibit non motorized trail bikes on these trails? By implication, the answer might be no. The drafters of the ordinance appear to have gone out of their way to define what the Park Director may prohibit on certain park trails. Arguably, this was intended to be an exclusive list, despite the existence of the Park Director's general power to regulate. In the statutory context, at least, the United States Su?reme Court h3:5 limited the application of the expressio unius r le sothat t can no longer be applied simply because son:iethm? was omitt d from a list. Rather, the nature of the omitted item must itself suggest that the omission was
intentional. In the words of the Court, "The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which are abridged in circumstances supporting a sensible inference that the term left out must have been meant to be exclud ed." Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002) (citing E. Crawford, Construction of Statutes 337 (1940)).
The Rule of Ejusdem, Generis
When a sentence lists several specific items and con cludes with a catch-all phrase like "and others," the rule of ejusdem generis-meaning "of the same kind"-provides that the general phrase is limited by the specific words that precede it.
The Rule of Noscitur a Sociis
This means that a word is known by its associates. Put differently, the courts will construe words by reference to the context in which they appear. This is how the ambiguity that is associated with homonyms (words that are spelled the same but have more than one meaning) is frequently resolved. For example, a court rule might provide for the admission of the scientific testimony of competent witnesses. Here, "competent" is clearly being used in the sense of being an expert rather than in the sense of being sane.
The Rule of Reddendo Singula Singulis
This means that the court will refer each item in a series to its corresponding item in a matched series.
Seller will begin the manufacture, assembly, and ship ment of the goods on July 1, June 1, and August 1.
Others