Brevity in a contract is certainly an important virtue. But it’s far from the only one. Sometimes a few words of explanation or clarification can be cheap insurance.
For starters: Every decision-maker who reads a contract has his or her own values, biases, intelligence, education, experience, etc. It’s impossible to know in advance what those might be for a particular executive, judge, juror, etc. In persuading that individual to see things the way you want, a bit of extra language might make all the difference.
Plus, the future’s often cloudy. It can be hard to know what difficulties the parties might encounter down the road. A less-terse contract might make it easier for the parties to collaborate effectively in dealing with unanticipated problems.
(Of course, many contracts are too long because their drafters didn’t or couldn’t take the time to be more concise, but there’s usually a happy medium.)
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Signing a business contract:
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DC – What is your opinion on the now nearly ubiquitous language “For the avoidance of doubt…..”? I was taught to say things once, and say it right the first time, rather than restate the same concept in a different way. This is a recipe for ambiguity in my opinion. On the other hand I do agree with using formulas and calculations to demonstrate precisely what is intended.
Tom, I use “For the avoidance of doubt” quite a bit. Mainly it’s to try to nip in the bud any attempt by the other side’s trial counsel to argue a different implied meaning of the preceding term.
Here are two examples, from a services agreement form I recently did for a client: