Outdated contract drafters
Summary (generated with support from AI tools):
- Many English-language contracts remain unnecessarily difficult to understand because drafters continue using outdated, inherited, and redundant language, often without any legal justification.
- While a few traditional expressions still carry specific legal meaning, most archaic wording provides little value and instead creates three connected problems: (1) contracts become less accessible to the wide range of users who rely on them, (2) they become expensive documents written primarily for lawyers rather than practical tools for performance, and (3) outdated phrasing can introduce uncertainty.
- The misuse of words like "shall" illustrates this issue. When such terms are used inconsistently or without clear purpose, they can create ambiguity.
- A contract is built from words, and clarity matters. Drafters should challenge unnecessary archaic language and require clear, source-based explanations whenever someone claims that outdated wording is legally required. Clear, modern drafting leads to better understanding, better performance, and fewer avoidable legal risks.
Is it necessary for English language contracts to be so difficult to understand? The answer is no.
Unfortunately, many contract drafters use an outdated language when drafting contracts. Contracts are often full of redundant and outdated word and phrases. Furthermore, outdated drafting is being passed down to the next generation of contract drafters.
Certain outdated words and phrases have distinct legal implications and must be used. However, usually there is no good reason to stick to such wording. It also creates at least three interrelated problems.
First, there are several users of a contract, and making contracts unnecessarily difficult to understand makes them less accessible for the broader audience of users. This creates a risk that important stakeholders will not perform according to the contract.
Second, such drafting is expensive and less useful. The contract ends up only as a document written by lawyers, for lawyers, in anticipation of litigation, instead of also being a valuable tool for performance. Often such a contract is kept in a drawer until there is a conflict.
Third, it creates legal risks. Numerous drafters employ outdated wording because they are uncertain of the legal implications of amending it. For example, will it have legal implications to change the old-fashioned future tense "shall have" to the present tense? Probably not.
The word "shall" is one of the most misused words in contracts. I use the word "shall" for obligations, following the drafting principles of Ken Adams. What is the risk if you use "shall" for other purposes as well? Well, then you use the word inconsistently. This might create uncertainty as to whether the purpose of a particular use of the word "shall" is to impose obligations or something else.
And this presents a significant risk. A contract is made up of words, and the use of words is key. Therefore, it is important to draft contracts that are easy to understand and to use concise wording.
My advice is to challenge the use of old and outdated language in contracts. If a contract drafter insists on this drafting style, then ask why. If the response is that it is needed for legal reasons, then request an explanation accompanied by supporting legal sources. Claims that outdated wording is legally required should be supported by clear explanations and legal sources.
The focus on clarity in this article is reflected in my Commercial relationships and contracts service and in my Contract language and clarity course.