Drafting - General Principles
Drafting - General Principles tests whether instructions can be converted into an enforceable text that a court, tribunal or regulator can construe without evidence of intention. The examiner looks for structure, consistent defined terms, correct auxiliary verbs and clear operative provisions.
Core disciplines
- Plan before prose: separate parties, recitals, operative provisions, covenants, conditions and execution block.
- Define once, use exactly: if you define ‘Agreement’, do not later call the same instrument a ‘contract’ or ‘deed’.
- Use ‘shall’ for obligation, ‘may’ for discretion and ‘must’ only where a statute imposes a condition. Avoid ‘shall be entitled’.
- One clause, one idea. Keep every proviso attached to the clause it qualifies.
Worked example
Original: ‘The Company shall pay interest at 12% per annum on delayed payments from the date of invoice until payment.’ The faults are that simple or compound interest is unstated, the trigger for ‘delayed’ is missing, and the day-count is unclear.
Revised: ‘Simple interest at 12% per annum shall accrue on each undisputed invoice amount that remains unpaid 30 days after the invoice date, calculated on a 365-day year from the due date until payment, and shall be payable on demand.’
Reasoning: the revision fixes the character and rate of interest, the trigger, the start date, the calculation method and the payment obligation. It converts a general complaint into a demand capable of proof.
Traps that cost marks
Using ‘and/or’; undefined ‘hereinafter called’; mixing singular and plural; leaving a proviso without a main clause; drafting ‘best efforts’ where the instruction is absolute; and placing substantive terms only in a recital. Recitals record background; they do not replace operative words.