effective draftsmanship

by Roderick Ramage, solicitor, www.law-office.co.uk

first published in New Law Journal (newlaw.journal@lexisnexis.co.uk) from 17 December 2004 to 8 April 2005



This article is not advice to any person and may not be taken as a definitive statement of the law in general or in any particular case. The author does not accept any responsibility for anything that any person does or does not do as a result of reading it.


These articles were published as a series in New Law Journal as follows:



17 Dec 2004

the dangers of simplistic language – how to write a clear, clear and effective clause


7 Jany 2005

why bother? – the four principal elements of a legal sentence – the proper use of “shall” and “will”


14 Jany 2005

analysing a complex clause and discouraging proviso – the dangers of “thereto, the dreaded shorthand


4 Feb 2005

back to the grammar school – some hints and rules of thumb – translating legalese into plain English


8 April 2005

how the courts interpret documents and acts of Parliament



article 1 (17 December 2004)


Although there are still those who would question the principle, I take it as axiomatic that it is desirable that plain intelligible English is preferable to traditional legalese and therefore will attempt here not to justify its use but instead to offer some guidance how to achieve it.  There is sometimes a misconception that simpler language is necessarily better than complex language, and the eager convert who rushes in with reformed wording can fall into the trap of beguiling but misleading simplicity.  In this and the following issues I will describe what can go wrong if a naïve attempt is made to write a legal documents in plain English, and then describe some basic principles of good drafting, give some drafting hints and finish with an analysis of the legal sentence


the horrible example

Before starting to discuss what drafting is about, I want to illustrate some  pitfalls of misleading simplicity with an example of typical and familiar legalese - horribly familiar.

If the rent hereinbefore reserved or any part thereof shall at any time be in arrear and unpaid for twenty one days after the same shall have become due (whether formally demanded or not) ... it shall be lawful for the Landlord ... to re-enter upon the demised premises or any part thereof in the name of the whole and thereupon this demise shall absolutely determine.  (64 words)


the Rugby Borough Council attempt

Years ago Rugby Borough Council thought that these words were all too horrible and, being converted to the cause of plain English, removed them in their entirety and replaced them with the following simpler and plainer words.

You must pay your rent promptly.  If you do not, then after three weeks the Council will have the right to take back the Unit from you.  (27 words)

This is very neat, but what does it mean?  Does it work?  The answer to the first question is "Not much" and the answer to the second similarly is "Not very well".  Let us see why.

When is the Council entitled to take back the Unit?  Easy, after three weeks, as the clause says.  Three weeks after what?  When do the three weeks start?  What must happen to start the three weeks running?  Well, I just do not know, but I do know what it does not mean.  It does not mean three weeks after the rent is paid promptly: that at least is plain from the words "If you do not".

The "If you do not" words are part of a condition on which the Council may take the Unit back, so let us use them to lead us to Rugby Borough Council's meaning.  My obligation is clearly to pay the rent promptly.  The condition is not “paying it promptly”.  If I pay it late, I have not paid it promptly, and that is so even if I pay it only one day late.  Therefore, according to Rugby Council’s wording, three weeks after I have paid late, even only one day late, the Council can take the Unit back from me.  If I pay the rent one day late, I have not paid it promptly, so the "If you do not" condition has already come into effect.

My guess is that that is not what the Rugby Borough Council really intended.  It probably intended that if the rent is three weeks in arrear it would become entitled to take the Unit back.  At worst the clause has an unintended meaning, and at best it is ambiguous.

Now suppose that Rugby Borough Council overcomes that hurdle and satisfies the court that the clause means that it may forfeit the tenancy by re-entering the Unit, sorry take it back, when the rent is three weeks in arrears, is it then entitled to recover it?  Probably not, unless the Council had complied with the common law obligation, if less than half the year's rent was in arrear, to demand the rent on the premises, at the front door, between sunrise and sunset.  The old clause relieved the landlord of that obligation by the words "whether formally demanded or not".  The Rugby Borough draftsman probably, neither understanding the significance of those words nor liked them (as an empty archaic formula), and so simply omitted them.

The lessons to be drawn from the Rugby Borough Council example are that the draftsman has broken three fundamental rules, which are:

1     you must understand what you wish to achieve;

2     you must know the law; and

3     you must use words which express unambiguously what you wish to achieve.


1       purpose

First, what does the Rugby BC clause seek to achieve?  This is speculation, but it seems to me that what is written is intended to be a forfeiture clause, but it starts by doing something different.  It starts by setting out "Your" (ie the tenant's) obligation to pay the rent promptly.  This may be only a device to set the scene for the main purpose of the clause, but it looks like a legal obligation.  So we have a clause which appears to try to do two things.  Apart from a risk of needless complexity, doing this can lead to uncertainty what is the purpose of main purpose of the clause.  The more I look at it the less sure I become about it, so let's leave it until I come to the words used.


2       law

As we have already seen, the Rugby draftsman was unaware of the common law obligation to make a formal demand for rent.  My guess is that he is also unaware just what is the legal consequence of operating this clause.  I assume that he intends to forfeit the tenancy, but is conceivable that Rugby Borough Council wanted some other remedy which entitles it to resume possession temporarily, without going so far as to terminate the tenancy.  Let us go on to the words used.


3       words

The first sentence is I think as good as anyone can write, but I would like to know whether it duplicates any other clause for the payment of rent.  The troubles here are twofold.  I have already talked about the "three weeks" point.  The second trouble is to be found in the words "take the Unit back from you".  In a well meant attempt to use everyday language the draftsman has lost the certainty that he expressed if he had chosen words which reflect his intention.  He must as least say that the tenancy will be terminated.  Taking the Unit back is not the legal consequence of failure to pay the rent promptly: it is merely the probable action that Rugby Borough Council will or may take on or after the legal consequence.  Look at the legal analysis as a series of steps like this:

1        condition                        - failure to pay the rent promptly;

2        legal consequence - forfeiture of the tenancy; and

3        practical result                - Unit taken back.


the Law Society's alternative

Well, so much for trying to make sense of the Rugby BC attempt at plain English.  I now turn to another approach to the same problem.  The Law Society published its Business Lease in the Law Society Gazette of 26 June 1991 and the forfeiture clause was as follows.  The current edition is substantially the same.

This lease comes to an end if the Landlord forfeits it by entering any part of the Property, which the Landlord is entitled to do whenever:

(a)   payment of any rent is fourteen days overdue, even if it was not formally demanded   (41 words)

Here we have all the essentials which appear in the horrible example, with nothing omitted, but expressed in words which are an object lesson in clarity.


the horrible example restated

Just to emphasise the point I have set the horrible example out below, for comparison with the Law Society clause, to show how a step by step process can effect the transition from horrible to clarity.

In step 1 the words in square brackets are deleted and the words in bold are added and in step 2 the original clause comes out as clean, clear and effective as the Law Society example and only one word longer.


step 1

If the rent [hereinbefore reserved] or any part [there]of it [shall at any time be] is in arrear [and unpaid] for twenty one days [after the same shall have become due] (whether formally demanded or not) ... it shall be lawful for the Landlord ... to re-enter [upon] the [demised premises] property or any part [there] of it [in the name of the whole] and [thereupon] then this [demise] tenancy shall [absolutely determine] come to an end.


step 2

If the rent or any part of it is in arrear for twenty one days (whether formally demanded or not) ... it shall be lawful for the Landlord ... to re-enter the Property or any part of it and then this tenancy shall come to an end.  (44 words)

what has been taken out or altered

hereinbefore reserved



of it

at any time


shall be


and unpaid

[superfluous - repetition]

after the same shall have become due




demised premises



of it

in the name of the whole






absolutely determine

come to an end.



article 2 (7 Jany 2005)


Why bother?

In the first part of this series I wrote about the risks of an enthusiastic but careless adoption of plain English.  Now I turn to the broad subject of draftsmanship.  It is fundamental to the work of a lawyer yet it is an almost untaught skill.  The lawyer, as much as a poet, is a wordsmith, but with a different objective.  The lawyer's words are his or her tools.  From now, with regret that we have no all embracing third person singular pronoun, feeling that “he or she” overloads the text, “one” if used excessively tends to pomposity and suffering a revulsion against “their” as a singular pronoun, except when so used by the poets (in particular Sir Charles Sedley, and perhaps Wendy Cope), I shall from now on write “he”, “his” and “him”, but in each case mean “he or she” and so on.  [Update 21/02/08:  see article “He, she, yo!” for a possible solution to this problem.]

The lawyer’s job is either putting into words what people wish or intend or interpreting other people’s words to ascertain what they mean.  The lawyer's words are his tools and his objectives are certainty and clarity, except on the occasions when his client wishes to use obfuscatory language to conceal his true purpose.  The draftsman’s method is first to ascertain the subject matter, what is to be achieved and the relevant law, and then to express his client’s intention in words.  This is the same in the public sector, in which legislation or other public regulations affects whole population or part of it, as it is in the private sector, in which an agreement may affect as few as one or two persons.  There are just three things, three legal actions for want of a better expression, that the law can do:

1     to command (to impose an obligation on someone to do something);

2     to permit (to give a discretion  or power to someone to do or refrain from doing something); and

3     to forbid (to prohibit somebody from doing something).

These three on their own are however insufficient to express the legal action, in any but the simplest cases.  “No Smoking” in a railway carriage window or “No Fishing” on a post by a river or lakeside are clear and effective legal expressions, but mostly the requirements for the legal action are more complex and need to be placed in their context.  First one must ask “Who?”, who is the subject of the legal action (ie the person to whom the legal action intended to apply)?  Secondly one must ask when and in what circumstances does the legal action apply?  This involves two elements, the general circumstances in which it applies and any conditions which are to be satisfied before it applies.  Thus we have four principle elements in any legal sentence:

1     the legal subject (the person to whom the legal action applies);

2     legal action (the obligation, discretion or prohibition);

3     the case (or the circumstance in which the legal action applies); and

4     the condition (what must be done for the legal action to arise).

Here are some elementary examples to illustrate the parts of a legal sentence.


example 1a

Where the Buyer is in breach of the Contract and the Seller has served on him a notice requiring him to remedy the breach the Buyer shall comply with the notice.


example 1b, in which the legal sentence is underlined and my explanation of the parts is in parenthesis and italics.

Where the Buyer is in breach of the Contract (the case ie the circumstances in which the condition can apply) and the Seller has served on him a notice requiring him to remedy the breach (the condition has been satisfied before the legal action takes effect) the Buyer (the legal subject) shall comply with the notice (the legal action).

The case, ie the circumstances in which the condition can apply, is that the buyer is in breach.  This must be so when the legal action applies and therefore is expressed in the present.  If this case applies, the condition (that notice has been served) must, however, be satisfied before the legal action and therefore is expressed in the past.


example 2a in which an additional condition is added

Where the Buyer is in breach of the Contract, and the Seller has served on him notice requiring him to remedy the breach, and the Buyer has failed to comply with the notice within fourteen days from the date of its service, the Seller may terminate the Contract.

Here there are three differences from example 1.  There is an extra condition (and the Buyer has failed to comply with the notice within fourteen days from the date of its service), the legal subject is a different person and the legal action, using the word “may” instead of “shall” is a right or discretion and not an obligation.  Although by the standards of much traditional drafting this is still a relatively simple sentence, it is already long enough and sufficiently complex that its structure is not immediately apparent through the words, so I restate it as example 2b, altering not the words but the layout in which the legal subject and action stand out from the case and conditions.


example 2b


-  the Buyer is in breach of the Contract,

-  the Seller has served on him notice requiring him to remedy the breach, and

-  the Buyer has failed to comply with the notice within fourteen days from the date of its service,

the Seller may terminate the Contract.


“shall” and “may”

The terminology and the analysis of the legal sentence that I have used above to describe the legal sentence is taken from George Coode’s “On Legislative Expression” (House of Commons Papers (1843) vol xx), which remains the basis of modern parliamentary draftsmanship, but the private sector is in places still slow to adopt (my earlier article in NLJ of 30 April 1970 clearly had little effect).   In the same paper Coode analysed the word “shall”, so misused by lawyers, now as then.  I now use the structure of a legal sentence to explain the proper use of “shall” and other expressions, which in turn give due emphasis to that structure.

In formal English usage “shall”, when used in the second and third persons, expresses obligation and “will” futurity.  So if I say “You shall be at my office at 2 o’clock this afternoon,” I am giving a command to you, expressing an obligation on you, but if I say “The train will arrive at Euston at 2 o’clock this afternoon,” I am making a forecast, expressing something which will (I hope) happen in the future.  They are two very different things and the meaning is apt to be confused if they are misused.

English being the difficult language it is, the meanings of these words are reversed in the first person, so that “will” in the first person expresses intention, ie corresponding to a command, whilst “shall” is the expression of futurity.  Hence when I say “I shall arrive at 2,” all that I am doing is to make a forecast of my time of arrival, but if I wish to express my intention to arrive at 2, a command to myself, I say “I will arrive at 2.”

Most legal documents are written in the third person, so for most purposes “shall” is the appropriate word to express obligation or prohibition;  but some people might find that “must” is less formal while meaning the same.  Only exceptionally, eg wills and deeds poll, are documents written in the first person, reversing the “will” and “shall”.  These words deals two of the three legal actions mentioned above.  The third, discretion, is easier and is provided by “may”.  The common misuse of these words is the overuse of “shall” , which is twice mistaken, first by using it in the mistaken belief that what the document intends to express is futurity and secondly in the mistaken belief that it is an expression of futurity.  Before explaining the risks of misuse of these words and the advantages of adhering to their formal use, I illustrate them by returning to example 1 above.


“shall” example (horrible)

Where the Buyer shall be in breach of the Contract, and the Seller shall have served on him notice requiring him to remedy the breach, the Buyer shall comply with the notice.


“shall” example (correct)

Where the Buyer is in breach of the contract, and the Seller has served on him notice requiring him to remedy the breach, the Buyer shall comply with the notice.


In the first example, there are three “shalls” of which only one is used to express the legal obligation.  The other two “shalls” are as commonly used, presumably to express what might happen in the future, viewed from the time when the clause was drafted.  This is unnecessary and incorrect and in some cases leads the draftsman, realising that something is amiss, to express the legal obligation as “will”, thereby wholly losing any expression of obligation in the legal action.

Modern statutes are written on the assumption that they are “constantly speaking” so that they apply and are to be construed at the time when they are applied and the case and condition are expressed in the present if they apply at the time of the legal action or in the past if they precede it.  Although there has been at least one case of a will (re Walker [1930] All ER Rep 391) in which a contrary view has been taken, I think that it cannot be doubted that the assumption which applies to legislation applies equally to private documents.  Therefore the legal expression is expressed using words of obligation or discretion, whilst the case and condition are expressed in the present if applicable up to the time of the legal actions or the past if to have applied or been done before the legal action.



article 3 (14 January 2005)


In parts 1 and 2 of this series I have looked at the structure of a legal sentence (legal subject, legal action, case and condition), the use of "shall" (to express obligation) and its misuse (as a mistaken and normally unnecessary expression of futurity) and touched on paragraphing as an aid to clarity.  In this part I am not looking at general principles but at two specific examples of poor drafting, which I will analyse (A) to look briefly at "provisos" and illustrate the parts of a legal sentence and the benefits of paragraphing and (B) to demonstrate the dangers of an indiscriminate use of "thereto".



It is trite and an oversimplification to say that the expression "provided nevertheless that" is legalese for "but", but this contains more that a grain of truth.  The traditional purpose of a proviso, in legislation and private documents, is to state an exception or exemption from the preceding provision and is normally inserted at the end of a clause.  If restricted to this purpose, a proviso may be technically unobjectionable, even though a direct expression of the exception is normally be simpler.  It is however common for a proviso to be also used to express legal obligations or merely to string together a number of subsidiary provisions that the lawyer drafting the document does not know how to attach to the main provision.  If one's aim is to draft a document in (relatively) plain English is usually advisable to use a "but" or to express the exceptions in sub-clauses.  In the following example, there is a substantial proviso containing first an exception to the main legal action and a sub-proviso contains the condition on which the exception can apply.

This is a genuine clause in an executed document drafted in a series of revision adding complication after complication to what are in reality fairly simple concepts.

example 1 (original form)

Subject only to the provisions of clause 10 hereof if at any time or from time to time during the period commencing on the date hereof and expiring on 30 June 2009 ("the Period") the Grantor desires to sell lease or otherwise dispose of any estate or interest (an "Estate or Interest") in the Pre-emption Land or any part or parts thereof ("Land") to a third party or parties (a "Third Party") it the Grantor shall not do so without first giving notice in writing (a "Price Notice") to the Grantee of its desire such notice to state the relevant Estate or Interest and the relevant Land and the price (if any) ("Expected Price") expected by the Grantor for such Estate or Interest in such Land and to give full details of all other the terms of such proposed sale lease or other disposal (as the case may be) which may affect the price of such Land ("Terms) and particulars of any offer that the Grantor shall have received from any bona fide disponee PROVIDED ALWAYS the provisions of this clause shall not apply to any disposition occurring solely by reason of a change in the trusteeship of the Charity provided that the Grantor shall procure that on any change in the trusteeship of the Charity the new trustee or trustees shall enter into and complete an agreement with the Grantee in identical terms to this agreement (mutatis mutandis) whereupon the Grantor (here meaning Lloyds Bank plc only) shall be released from the obligations of this clause...

Before a mass of text can be understood, it must be analysed into its component parts (legal subject and legal action, case and conditions and other descriptive phrases.  Step one is to identify what seem to be the legal subjects and actions.  Here there appear to be two in the main provision and two in the proviso.  These are shown yellow in the box below.  Step 2 is to underline the circumstances in which the clause applies, including both cases and conditions, but omitting descriptive detail.  Step 3 is to break the main part of this clause, excluding the proviso, into its main components, which I have marked (A), (B) and (C).  The words after the (A) are the case in which the first legal action (“the Grantor shall not do so”) in (B) applies.  Although the words “such notice to state” in (C) look like a legal action, they are actually another  condition for the legal actions “shall not do so”.  The remainder of (C) sets out the matters (1) to (5) to be contained in the notice mentioned in (B).

This takes us up to the proviso, which starts as an exception but is complicated by a sub-proviso, which is actually another legal action ("the Grantor ... shall be released ...".  The sub-proviso (“the Grantor shall procure that …”) looks at first sight like a legal action, but it is actually a condition for the release of the Grantor at the end of the proviso.

Subject only to the provisions of clause 10 hereof (A) if at any time or from time to time during the period commencing on the date hereof and expiring on 30 June 2009 ("the Period") the Grantor desires to sell lease or otherwise dispose of any estate or interest (an "Estate or Interest") in the Pre-emption Land or any part or parts thereof ("Land") to a third party or parties (a "Third Party") it (B) the Grantor shall not do so without first giving notice in writing (a "Price Notice") to the Grantee of its desire (C) such notice to state (1) the relevant Estate or Interest and (2) the relevant Land and (3) the price (if any) ("Expected Price") expected by the Grantor for such Estate or Interest in such Land and (4) to give full details of (4) all other the terms of such proposed sale lease or other disposal (as the case may be) (4a) which may affect the price of such Land ("Terms) and (5) particulars of any offer that the Grantor shall have received from any bona fide disponee PROVIDED ALWAYS the provisions of this clause shall not apply to any disposition occurring solely by reason of a change in the trusteeship of the Charity provided that the Grantor shall procure that on any change in the trusteeship of the Charity the new trustee or trustees shall enter into and complete an agreement with the Grantee in identical terms to this agreement (mutatis mutandis) whereupon the Grantor (here meaning Lloyds Bank plc only) shall be released from the obligations of this clause

Once you have analysed a clause to understand its purpose, it can than be recast, using definitions and paragraphing to produce the revised version shown below.  The use of definitions is not just to give particular meanings to words, but also to remove bulk from the main clauses, so their legal elements can be shown as clearly as possible. 

You will see that parts (A) and (B) of the original example are contained in clause 1.1 of the restated version, showing very plainly the legal action (“shall not do so”), the case in which it applies (the Grantor’s wish to sell) and the condition (giving a Price notice) to be complied with.

Clause 1.2 is cast as a legal action, stating what (all on separate lines like a check list) must be contained in the Price Notice.  The exception in the main proviso is now clause 1.3 and contains a legal subject and action (“this clause shall not apply”), the case in which it applies (a change in the trusteeship) and the condition (execution of the Novation Agreement) to be complied with.

The final legal action is the release of the Grantor in clause 1.4, the conditions for which is the execution of the Novation agreement.

example 1 (revised)

In this deed the following expressions shall have the following meanings.

"Estate or Interest"

means any estate or interest in the Pre-emption Land or any part or parts of it.

''Expected Price"

means the price expected by the Grantor for the relevant Estate or Interest.


means the whole or part of the Pre-emption land specified in a Price Notice.

"Novation Deed"

means an agreement by new trustees of the Charity with the Grantee in identical terms to this agreement (mutatis mutandis).


means the period commencing on the date of this deed and expiring on 30 June 2009.

"Price Notice"

means a written notice to the Grantee of the Grantor's wish to sell lease or otherwise dispose of an Estate or Interest.


means all the terms of the proposed sale, lease or other disposal of the Estate or Interest which may affect the Price.

"Third Party"

means a third party or parties.

1.1   If at any time or times during the Period the Grantor wishes to sell lease or otherwise dispose of an Estate or Interest to a Third Party the Grantor shall not do so without first giving a Price Notice.

1.2   The Price Notice shall state

-        the relevant Estate or Interest,

-        the relevant Land,

-        the Expected Price (if any), and

-        the Terms, and particulars of any offer that the Grantor has received from any Third Party.

1.3   This clause shall not apply to any disposition occurring solely by reason of a change in the trusteeship of the Charity if the Grantor procures that on any change in the trusteeship of the Charity the new trustees enter into and complete a Novation Deed.

1.4   On the execution of the Novation Deed the Grantor shall be released from the obligations of this cause.

1.5   This clause is subject to clause 10



Whenever possible, which means almost always I eschew the “thereto”, “hereto” and even more the “heretofore” type words simply because they are words which are more legalise and English.  These words can mark the legal document as something written in another language kept secret from the laity, even if the good intention is that is that they are abbreviations and save repetition by referring back to something already mentioned.

The following example demonstrates the dangers of a favourite legal draftsman’s shorthand, the dreaded “thereto”.  It is not a legal sentence of the kind that we were considering in parts 1 and 2 of this series, as there is no legal action (ie no command, prohibition or permission).  It is a statement of fact, and could be a recital or a warranty.

In this example the “thereto” resulted in an ambiguity, which it is not easy to resolve with certainty.

example 2

The Vendors aware of no substantial defects relating to the state of repair and condition of the Property now existing or which have previously existed and has complied substantially with the requirements of the Landlord under the Lease which have been communicated to the Vendor with regard thereto.

To what does the “thereto” refer?  An attempt can be made to answer that by analysing the grammatical structure of the example into its normal, breaking it down into its two main parts.

the example

grammatical analysis

The Vendor


is aware of

1st main verb

          no substantial defects

relating to the state of repair and condition of the Property now existing or which have previously existed

          1st object

adjectival phrase qualifying “defects” ie

- defects in state of repair

- defects now existing


has complied substantially with

2nd main verb

          the requirements

of the Landlord under the Lease which have been communicated to the Vendor with regard thereto.

          2nd object

adjectival phrase qualifying “requirements” ie

-Landlord’s requirements

- requirements under the Lease

- requirements communicated


With regard to what?  The “thereto” can refer to (1) substantial defects, (2) state of repair and condition, (3) requirements or (4) Lease.  As it is not clear from the structure of the sentence, let us try each one in turn in an attempt to find one (with luck only one) which makes sense.

The whole sentence under these meanings of thereto can be reduced to these interpretations


1.  The Vendor is aware of no substantial defects and has complied substantially with the requirements of the Landlord with regard to the substantial defects.

This makes no sense, because the Vendor cannot comply with requirements relating to something which he is saying does not exist.

2.  The Vendor is aware of no substantial defects relating to the state of repair and condition of the Property has complied substantially with the requirements of the Landlord with regard to the state of repair and condition.

This does make sense, but (non-conclusively) the separation of “state of repair and condition” from “thereto” makes this a less attractive than interpretation 4.

3.  The Vendor is aware of no substantial defects and has complied substantially with the requirements of the Landlord with regard to the requirements.

This is a tautology and so makes no sense.

4.  The Vendor is aware of no substantial defects and has complied substantially with the requirements of the Landlord with regard to the Lease.

This does make sense and, because (non-conclusively) “Lease” is in close proximity to “thereto”, this may be preferable to interpretation 2.


My conclusion therefore is that the use of the word “thereto” makes in impossible to be sure what the draftsman intended.  Interpretation 4 is my best guess, but that depends on no more than the proximity of the words “Lease” and “thereto”.  However the context of this sentence (I was asked to advise on the sentence on its own) could show that the parties were concerned with was the state or repairs, in which case interpretation 2 is to be preferred.

The lesson is to ascertain what is intended and say it without using abbreviations unless they are wholly unambiguous.



article 4 (4 February 2005)


the aim
The aim of drafting is to express one client’s meaning and the priorities are first certainty and then clarity except where the client’s intention is to conceal the true meaning behind a mass of obfuscatory legalese.  The other side of the same coin is ascertain the meanings of others by interpreting what they have put into words.
The client wants to get from A to B, and the lawyer has two roles (1) as insurer and (2) engineer.  As insurer the lawyer assesses and advises on risk.  Can this be done?  What are the obstacles of doing it?  As engineer the lawyer’s job is to prepare the verbal mechanisms that the client needs to achieve his or her aim (letters, resolutions, formal legal documents, oral arguments, statements of evidence etc).
The first two steps are (i) to ascertain what the client wishes to do and (ii) to ascertain the risks, which are (a) legal (what law applies?) and (b) “real world” (what might other parties to the documents and third parties do?).  All this is preparation.  It is the same as painting a window frame.  No matter how carefully the gloss is applied, the result will never be satisfactory unless it has been preceded with a great deal of preparation.

Only when the A and the B are clearly understood and the risks ascertained can a start be made to draft the document, when the following rules of drafting are generally useful:

1      outline the whole scheme of the document;

2      omit nothing essential and include nothing unnecessary;

3      follow a logical order;

4      conform with the ordinary form of the document; and

5      use accurate language, including, when necessary, technical language which has already been interpreted by statute of the courts.

layout and clause order
The normal order in which clauses appear in a document is:
1      the date and the parties;
2      any recitals of background facts or intentions, which are necessary to make sense of the deed and put the legal actions into context (recitals enable a deed to “stand on its own feet”);
3      the operative clauses starting with those most fundamental to the purpose of the documents and moving progressively down through clauses dealing with the how and what to the “boilerplate” clauses at the end (interpretation, the service of notices, applicable law, stamp duty etc);
4      attestation; and
5      schedules and appendices, where substantial amounts of text deal exclusively with particularly topics or are of a particular kind, such as a list of prior documents, names and addresses if there are many parties, warranties in a sale agreement, a lengthy description of property, clauses for insertion in an earlier document, specimen of a subsidiary agreement etc.
There is no better example of the “good servants but bad masters” adage that precedents.  Precedents are an invaluable short-cut to avoid reinventing the wheel with each new documents and may contain what the drafter has found from experience or study to be useful.  Those taken from the established textbooks (eg EF&P and Kelly’s Draftsman) may also contain useful technical clauses and boilerplate, that you do not need to draft from basis principles, and by their footnotes may indicate the relevant law.  They are however standardised creations showing what the drafter thinks is relevant in what the drafter thinks might be a typical case, but almost certainly not what may be relevant in the case that your client has in mind.  If you are tempted to take a precedent from another file, don’t.  It was created for another case with its own particular requirements and is likely to be one stage further from what your client want now.  On the other hand do learn from each new documents drafted how your databank of precedents may be improved.
Do therefore use precedents as an aid, but only as an aid to drafting each new document.

There are two extremes:  the traditional one page of solid  unpunctuated text, such as the main example in Article 3 of this series, or paragraphs so short and numerous that they are closer to a laundry list than English prose.  That clarity and understanding are generally aided by breaking a sentence into paragraphs and subparagraphs and obstructed by solid masses of text should not prevent you from using normal continuous text if it reads more easily and the meaning is clear.  Two rules of thumb may help paragraphing decisions.

1      Do only one thing in each paragraph.  If the sentence does two things, split into two paragraphs.  One failing of the “Rugby Borough Council” clause in Article 1 was that it did two things:  it was both a covenant to pay rent and a forfeiture clause.

2      Where there is a number of things to be done or conditions to be satisfied, they should be put into a list, such as clause x in the reworked example 2b in Article 2 or 1.2 in example 1 (revisited) in Article 3 and not in continuous prose, because the former gives you a check list, in which any particular item is less likely to be overlooked than it would be in unbroken text.


Definitions are a good thing for two main reasons.
1      You frequently need words to have a particular meaning in a document.
2      They save space in a sentence, when the length of the definition would overwhelm it so that its structure and meaning are not obvious:  see the definition in example 1 (revisited) in article 3, eg “Novation Deed” and “Price Notice”.
Definitions can be either all together in one clause or can be inserted in the text as and when one first uses a word that needs a definitions.  In a short documents the latter is probably best as it does not interrupt the flow of the text but mostly I prefer a separate clause so a definition can be found easily without having to search throughout the document for the place where the word is first used.  In the only case I remember of a client actually discussing a definition clause, he wanted it moving to the end of the document, away from its usual place at the start, so that it would not interrupt the flow of meaning.  (He was Swiss and so understood English better than most of us!)
By convention defined terms are graced with a capital initial letter, which in everyday English is given only to names.  Some lawyers put the whole word in upper case or bold (or both), but a capital initial letter is sufficient and is consistent with normal practice.  Two reasons for not putting whole words in upper case are that the “shape” of the words is lost so it is not read so easily and that, analogous to the practice of good manners in email in which upper case text is regarded as shouting, it is an overemphasis of the defined word, which distracts the reader’s attention from the remaining text.
Confusion arises where secretaries (and sometimes drafters too) misuse capitals by applying them in legal and business letters and other documents to any word that happens to look important such as “Director”, “Deed”, “Clause”, “Solicitor”, etc.  How then do you know whether the word is a defined terms or merely an ordinary word , given spurious dignity by a capital initial letter?


Unless the parties to an agreement agree some other meaning, “month” and “year” mean respectively a calendar month and a calendar year starting on 1 January, regardless of the number of days.  It is better to say “four weeks” or “28 days” rather than “lunar month”.   A day is normally the period of 24 hours from midnight to the following midnight, so a period “starting on 1 January” starts at midnight on 31 Decemebr/1 January, but, in Cornfoot v Royal Exchange Assurance Corporation [1904] 1 KB 40, the apparent intention of the parties was that thirty days meant thirty consecutive periods of 24 hours and not thirty calendar days.

“From 1 January ...” is ambiguous as the time could be inclusive or exclusive of that date and can mean either “after 31 December ...” or “after 1 January ...”: according to Browne v Black [1912] 1 KB 316, (and plain English), “14 days after 1 January 2005” will exclude that date.  “From and after 1 January ...” probably does not resolve the ambiguity: according to Goldsmith’s Company v West Metropolitan Railway [1904] 1 KB 1, if an act is to be done within a period from a certain date, that date is to be excluded; but in the particular circumstances of the deed considered in English v Cliff [1914] 2 Ch 376  the date was included.  A better alternative is “a period of 28 day starting on”.  Alternatively you could define (eg) “Option Period” as “the period after 31 December 2005 and before 1 April 2005” and stipulate:  “... the Buyer shall give notice in the Option Period”.

The end of the period may also be inclusive or exclusive, which should be mad clear by words such as “before (date)” or “ending on (date)”.  “14 clear days” means that fourteen days must elapse between the dates

An unqualified number, eg days’ prior notice may mean that there is only one day on which the (eg) notice can be given.  Unless that is intended the period should be “not less [or more] than 14 days”; and if an exact period is intended, it should be expressed, for the avoidance of doubt, as “14 days and neither more nor less that 14 days”.


The passive is imprecise and should rarely have a place in a legal document, if the aim is to be certain who does what to whom.  “Notice to determine the price shall be given not less than 28 days before ...” begs the question who is to give the notice.  Say instead “The buyer shall give notice ...”


heretofore etc

Although “therefore” (and to a lesser extent “therefor”) are used in everyday English, “hereto”, “theretofore” and all that class of words are archaic legal forms that are more or less unknown in normal English and add nothing to a legal documents, except perhaps a little pomp and ceremony, but gives the impression that it has been written someone wholly out of touch with the real world.


The common use of “and” is conjunctive and “or” disjunctive, but this is not invariably the case.  In Associated Artists Ltd v IRC (1956) 2 All ER 583 the “and” in “(a) to present, classical, artistic, cultural and educational dramatic works” was held to be disjunctive so that the company could present a play which was, for instance, artistic but not educational.  What was intended would have been put beyond reasonable doubt had the phrase been expressed either “(a) to present dramatic works to which all the following adjectives apply - classical, artistic, cultural and educational” or “(a) to present dramatic works with to which one or more of the following adjectives apply - classical, artistic, cultural and educational”.  As each of “and” and “or” can be conjunctive or disjunctive the expression “and/or”  is more likely to confuse than explain the meaning.


“Where the Buyer is in breach of the Contract, and the Seller has served on him notice requiring him to remedy the breach, and the Buyer has failed to comply with the notice within fourteen days from the date of its service, the Seller may terminate the Contract, forfeit the Deposit and claim interest.”

Does this mean that the Seller, if he exercises the right given by this clause must exercise all three remedies or none?  Would it make any difference if the last “and” were replaced by an “or”?  There are several answers which could have been made clear by the following use of sub-paragraphs.
alternative 1

“Where … the Seller may do all or any of the following:

(a)     terminate the Contract;

(b)     forfeit the Deposit; and

(c)      claim interest.”

alternative 2

“Where … the Seller may do all but not any of the following:

(a)     terminate the Contract;

(b)     forfeit the Deposit; and

(c)      claim interest.”

alternative 3

“Where … the Seller may do either but not both of the following:

(a)     terminate the Contract; or

(b)     both forfeit the Deposit and claim interest.”


such, said and same

These words do exist in Plain English, but less frequently and not in the same was as in Legalese.  “Such ... as” is commonplace is unobjectionable, but “such” as a kind of demonstrative adjective to link a word to a previous use of that word is cumbersome and offers no more precision than a simple “the”, “that” of “those”.  Sir Frederick Pollock, once an editor of the Law Reports, wrote:  ‘As to such, this is the kind of attorney’s clerk’s slang I have tried to choke off:  “The plaintiff was the tenant of a house in X Street.  Such street was admitted to be a new street within etc, etc”.  They think it looks more professional.  And so it has crept even into judgments.’

The same objection applies to “the said” and “the same”.  “The said John Smith” cannot reasonably be anyone other the John Smith mentioned in the previous sentence.  If another John Smith has appeared in the narrative, the writer would have said “another person called John Smith”; and if two John Smiths had already appeared, a “the said” would not identify which of them is now intended.  Similarly a gift of my property Greenacre to my executors with a directions “to hold the same on trust etc”, means neither more not less that “to hold it on trust etc”.

These are all archaic legalism which add nothing to the meaning of a document.  If there is a need to link a word with the same word previously used and to distinguish it from the same word in another context between two words, one used in a general  sense, none of such said or same will make the distinction clear, but a definition will.


present participles (˜ing)

“Anyone driving over the x limit ... shall be liable” or “anyone failing to pay interest ... shall be liable” leaves uncertainty whether the act or failure (which is a conditions as described in Article 2) precedes of must apply at the time of the legal action.  They are better expressed as “anyone who drives over the x limit” or “anyone who has failed to pay interest ...”.


consistency, tracking

If a previous provision in a document is repeated, and the expression is not one which can be dealt with by a definition, the same words must be used, as far as possible, in the second and subsequent use as on the first occasion, because, different words will lead to the inference that another different meaning is intended.  Similarly when a clause is being drafted to comply with a condition set in a another document, a statute or an earlier agreement, the clause should “track” so far as possible the wording of the original.



The LPA 125 s61 enacts that the masculine includes the feminine and vice versa and the use of “he”, “him” and “his” as neuter pronouns is technically correct and leads to simpler language that the use of gender neutral expressions such as “he or she” of “he/she” of “(s)he” (see the opening paragraph on Article 2).  Nevertheless, you should consider more use of “he or she” etc in documents used directly by large numbers of the public, such as employment terms despite the risk that an excessive use of expressions of this kind are cumbersome and unnecessary.

The use of “their” as a singular pronoun can be a delight in poetry but is an abhorrence leading to ambiguity in legal documents.  In “Where an applicant notifies the other residents of a complaint, they must lodge a section 12 notice within 14 days” the grammarian might think that the “they”, being plural, refers to the “other residents?” and that they should lodge the notice; but the drafter of this clause might have meant that the applicant should lodge the notice.  The latter meaning would have been clear had the clause read “Where an applicant notifies the other residents of a complaint, he or she must lodge a section 12 notice within 14 days.”

“Person”, incidentally, is defined in the same section to include a corporation.



(In response to a reader’s enquiry about my views on punctuation.)

I am convinced that sensible punctuation is a necessary in a “plain English” legal document, despite venerable judicial authority to the contrary:  Sanford v Raikes (1816) 1 Mer 646 in which the MR said “It is from the words, and from the context, not from the punctuation, that the sense must be collected.”
Do not make any effort to add “style” to a document (legal or otherwise) as it will look forced.  Good style will result from good writing, just as good engineering usually looks right without the help of a stylist.




(“hereinafter called the Vendor”)


...(or) thereabouts


during the continuance of



so (or) therefore

adjacent to

next to



any fact or matter


arising out of

resulting from

as from




consent of the Landlord

the Landlord’s consent



demised premises



termination (or) end


terminate (or) end

determine [price]

decide (or) fix

devise end bequeath





(nothing - delete without replacement)

during the period of x months

for x months

during their joint lives

while they are both living








apart from



expiration (or) expiry


fire or other inevitable accident

inevitable accident




from now on


(nothing - delete without replacement - or sometimes) now

heretorfore etc

(nothing - delete without replacement)

in connection with


in relation to


in specie

in kind

in the event of


in the manner following

as follows

in this behalf

[enabling him] to do so

in writing


is desirous of

wishes to

make payment of


observe and perform

comply with

on behalf of


on foot

in force

on the expiration of

at the end of

other than


prior to


provided nevertheless that

but (or) on condition that

provisions of clause 2

clause 2



purchase money/price

price (or) Price





right and liberty



(nothing - delete without replacement or) that

save [for]

except [for]

shall be at liberty to


shall have power to


situate at


subject to

if (or) as long as


(usually) the (or) that



to the intent that

so that

well and sufficiently


with reference to


with regard to


yielding and paying




article 5 (8 April 2005)


But will the courts believe what you write?

Having taken a brief look at “how to write it”, it is instructive to ask whether the courts will pay any attention.  The classic rule is that the court must ascertain the parties” intention from their expression of it, and not what the court thinks that their intention should have been despite what was expressed.  This was illustrated in by the House of Lords in Sefton v Tophams Ltd [1966] 1 All ER 1,039, in which Lord Upjohn said at 1047-8:  “… I cannot see how their belief as to the operation of the covenant in relation to assigns from the Tophams can effect the proper construction to be placed on the words which your Lordships have to construe.  That seems to me to be  as irrelevant in construing the words as is the fact that for whatever reason the respondent concedes that he cannot now enforce it.”  As Robinson on Drafting (Butterworths 1980) put it:  “If the parties intend one thing but agree another, then the parties are bound by the meaning to be given to the expressed words.  Resort to intention in a court of law is a last ditch stand:  it is too late.  If draftsman fails to express the intention, the courts cannot remedy the defect.”

Or can they?  Leaving aside rectification, I offer you now two similar cases in which the courts have looked at the words, decided that what they said was inconvenient (or wrong, depends on whose perspective you take) and so reached decisions that the parties’ or legislator’s intentions were the opposite of what appears to have been expressed by the words and that the intentions were to be upheld.


Can or must the trustees consent?

In re Courage Group’s Pension Schemes, Ryan and others v Imperial Brewing and Leisure Ltd and others, ChD, [1987] 1 All ER 528, the court had been asked to consider the exercise of a power of amendment in clause 15 of a pension scheme trust deed, which reads as follows.

The Company may at any time by deed supplemental hereto add to delete or vary all or any of the provisions of this Deed or of the Rules and the Committee of Management shall concur in executing any such supplemental deed.

An occupational pension scheme is established by an employer and must have trustees, whose principal purpose is to receive contributions paid to the scheme and hold the fund arising from them and the investment return in them, so that the fund is available for the pavements of pensions and other benefits free from the risk claims by the employer’s creditors.  The trustees are usually the scheme’s administrators and are responsible for the payment of benefits; and a major part of the drafting of pension scheme’s trust deeds is concerned with the balance of power between the employer and the trustees.  Typically the employer has the power to appoint and remove trustees, subject to the overriding statutory requirement for members nominated trustees.  Commonly, but not (quite) universally, the power to alter the scheme is shared between the employer and the trustees, so that the employer can change the scheme with the consent of the trustees or vice versa but neither has an unilateral power to do so.

Where the balance of power rests is not the object of this article, except that the two (somewhat exaggerated) opposed possibilities can illustrate how an assumption of what was intended in this case may have affected the court’s willingness to avoid the literal interpretation of the words used by the parties.  One viewpoint, doubtless regarded as reactionary, is that a pension scheme is no more that an extension of employer’s employment policy, in which the security of the scheme’s assets is the prime, or even the only, purpose of the trust (a trust is a precondition for tax relief, but that is a superficiality superimposed on the fundamental purpose).  From this viewpoint, the trustees are instruments for carrying out the employer’s employment and reward policy, and it is not for them to be responsible for major decisions concerning the scheme.  The second, and more common, viewpoint is that the pension trust has an independent life of its own, and, having established it, the main function of the employer is to pick up the financial tab; and that the trustees are not just primarily responsible for the administration of the scheme but must also participate in any major decision about it.

Now back to the Courage case.  During a contested take-over bid, the employer had purported to change the scheme by closing it to new members, in order to frustrate any aim of the bidder, the Hanson Group, to use the surplus funds in the  scheme for its own advantage of that of its employees.  The validity of the alteration was challenged.

The employer argued that it alone had the power of amendment, and that, if it exercised it, the use of the mandatory word “shall” obliged the Committee of Management (as the trustees of this scheme were known) to concur.  “Shall”, said, the employer’s counsel, means “shall” not “may”.  What, however, the Millett J found decisive was that there was no purpose in requiring the committee of management to join in executing an amending deed if it was a mere formality.  He concluded therefore that  the committee of management had a discretion and was not bound to concur in executing an amending deed.  Although he did not say as much, this finding is tantamount to inserting the words “if it thinks fit” before the “shall”.

This finding accords with the second balance of power viewpoint.  The first viewpoint would have required, for example “for the sole purpose of acknowledging the changes made by the Company” to the end of the clause.

But even if words been used to show beyond doubt that the employer had sole power to alter the scheme, one would still be left with the dilemma pointed out by Millett:  should one then treat the words about the committee of management as supernumerary and ignore them or look in the context for a purposeful meaning?  Evidently he preferred the latter.


Does as company include its subsidiaries?

Acts of Parliament are as prone to creative interpretation as private documents.  Section 459(1) of the Companies Act 1985 gives us as a good an example as the Litster case in the newer and less well known case of re City Branch Group Ltd, Gross and others v Rackind and others, [2004] EWCA Civ 815, CA..  The section reads as follows. 

“A member of a company may apply to the court by petition for an order under this Part on the ground that the company’s affairs are being or have been conducted in a manner which is unfairly prejudicial to the interests of its members generally or of some part of its members (including at least himself) or that any actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.”

The key words are … a member of “a company” … “the company’s affairs” … and … prejudicial to … “its members”.  It looks very simple.  A company is singular, company’s (apostrophe before the s) is singular as is the its.  As every 1st year company law student knows, a company is “a separate legal entity”, and can not only quote from Salomon v Salomon & Co, [1897] A.C.22 that: “In the eyes of the law a company is a person capable of perpetual succession and quite distinct from the natural persons who are its members at any given time”; but move from there to the firm knowledge that it is also distinct from any corporate persons who are its members at any time and any in which it is a member, yet such is the flexibility of the law that in City Branch the affairs of a subsidiary were held to be the affairs of the company.

In the wider proceedings, (simplified) two shareholders each petitioned to have the company (C) wound up.  One of them (G) based his petition on an allegation of unfairly prejudicial conduct on the part of (R).  R retorted that the alleged conduct was in relation to a subsidiary of C and not of C itself and sought to have G’s petition struck out.  His application was refused by Weeks QC, sitting as a deputy High Court judge, and his appeal to the Court of Appeal was dismissed.  G was therefore entitled to petition on the grounds of alleged unfairly prejudicial conduct of the affairs of a subsidiary of C.

Superficially this is contrary to the plain words of s459(1).  The literal as opposed to the liberal interpretation could argue that, if a wider meaning was intended, the legislator could have said simply “the company”, but included its subsidiary and holding companies (defined in the Companies Act 1985, s736) or “group” (ib s262), and, as it did not do so, the narrower and literal interpretation is correct.  This approach overlooks a wider view of the matter, in which the words must be viewed in the context in which they are used.  In Re A Company [1987] BCLC 141 Harman J said: “All these cases together, in my judgment, lead one clearly to the understanding that the conduct to be complained of must be in the affairs of the very company in respect of which the petition is presented”; but, as was pointed out in City Branch, Harman was not dealing with a group of companies.  The affairs of a company include, citing Phillimore J in R v Board of Trade ex parte St Martin’s Preserving Co Ltd [1965] 1 QH 603: “[The affairs] of a company must surely include its goodwill, its profits or losses, its contract and assets including its shareholding in and ability to control the affairs of a subsidiary …”.

There was thus no need therefore to distort the normal usages of language and to confuse the singular with the plural.  Instead one must look first at the words and then, in order to understand how they operate, the contest in which they operate and be aware, whether interpreting or drafting, which is the other side of the same coin,, that the first and obvious (or superficial) point may not be the point that matters.


the new principles of interpretation

The aim of interpretation is still to ascertain the intention of the parties from their words, but there has been a shift from an emphasis on the words alone to a more liberal, wider approach, as illustrated by the three following cases in the late 90s (but for some earlier key cases see box 2)

In Cargill International SA and another v Bangladesh Sugar and Food Industries Corp, [1998] 2 All ER 406, CA, Potter LJ said at 413:  On the other hand, modern principles of construction require the court to have regard to the commercial background, the context of the contract and the circumstances of the parties, and to consider whether, against that background and in that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result.”

Next in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352, HL, Lord Steyn said at 372:  “In determining the meaning of the language of a commercial contract, and unilateral contractual notices, the law therefore generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties.  Words are therefore interpreted in the way in which a reasonable commercial person would construe them.  And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language.” 

Finally, for the guidelines on interpretation given by Lord Harman in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98, HL at 114, see box 1.


modern guidelines

Lord Harman in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98, HL, said at 114:

The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life.  Almost all the old intellectual baggage of “legal” interpretation has been discarded.  The principles may be summarised as follows.

(1)     Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2)     The background was famously referred to by Lord Wilberforce as the “matrix of fact”, but this phrase is, if anything, an understated description of what the background may include.  Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3)     The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent.  They are admissible only in an action for rectification.  The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life.  The boundaries of this exception are in some respects unclear.  But this is not the occasion on which to explore them.

(4)     The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words.  The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.  The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352, [1997] 2 WLR 945.

(5)     The ‘rule’ that words should be given their ‘natural and ordinary meaning’ reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents.  On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.  Lord Diplock made this point more vigorously when he said in Antaios Cia Naviera SA v Salen Rederierna AB, The Antaios [1984] 3 All ER 229 at 233, [1985] AC 191 at 201:

‘… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.’



copyright Roderick Ramage

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