How Not to Lose Your Mind Drafting Contracts
When we wear a mask, said Orwell in Shooting an Elephant, our face grows to fit it. So what happens to your mind when you draft contracts for a living?
Soon, you’re saying things like, “Notwithstanding the foregoing,” and “For the avoidance of doubt.” If you’re not careful, you lose the ability to communicate. Worse, you lose the ability to think clearly.
Why? Because contracts, at least as traditionally drafted, are meant to be abstract. This makes sense because they have to be general. (Unsurprisingly, the most general science, mathematics, is also the most abstract.)
But abstraction is the enemy of understanding. The mind loves particulars. Concrete objects. Things. Worse, contracts have few verbs. The mind loves action almost as much as it does particulars. “Dog bites man” is easy to understand. “Utilization of excess capacity” isn’t. (Who was using the capacity? And capacity of what? And how quickly was it being used?)
Thankfully, contract simplification is fashionable. Let’s hope it stays a la mode permanently. And that may allow many of us contract drafters to keep our sanity. At least for a while.