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Use “for emphasis” instead of “for the avoidance of doubt”?

British lawyers sometimes use the term “for the avoidance of doubt” or “for clarity.” I’ve started sometimes using “For emphasis” instead. As an example, here’s part of a warranty provision that I’m drafting for use in the upcoming revision of my course materials:

For emphasis: The Provider (i) is not warranting or guaranteeing the future performance of any deliverable; but (ii) is committing to take the actions stated in this Clause if a deliverable fails to comply with a warranty about the state of the deliverable as delivered.

(The bold-faced emphasis is in the clause itself.)

This falls under the heading of serving the reader: Working to educate — and if necessary, persuade:

  • the other party’s contract reviewers, to help get the contract to signature sooner;
  • the parties’ business people who have to carry out the contract; and
  • perhaps someday, a judge or jury,

all using as little of the reader’s time as possible.

Yes, brevity is laudable. But more importantly, drafters should strive to optimize the reader’s use of his- or her time, to reduce how long it takes for the reader to grasp what the parties agreed to, while also reducing the risk that a reader will form a misimpression, especially in an “edge case” (an unusual situation).

And that’s where judiciously adding a few words of explanation can help serve the reader.

Some will respond that drafters shouldn’t clutter up their contract with such so-called “throat clearing.” But brevity isn’t the paramount goal here.

Contract drafting shouldn’t be what software people call code golf: a competitive game of trying to write the shortest possible computer program (or here, contract), using the fewest words possible, the way golfers try to get around a course using as few strokes as possible.

Sure, code golf can be fun — but the resulting “work product” can be very difficult for readers to puzzle through; see the examples in the Wikipedia article linked above, which notes that: “Because golfing languages compete for extreme brevity, their design sacrifices readability, which is important for practical production environments, and therefore they are often esoteric.” (Emphasis added.)

Clients want contracts signed sooner rather than later, and they want to be able to understand them. That’s where readability beats brevity.

Moreover, many contract drafters are pretty busy: They typically don’t have a lot of time to craft precisely the minimal phrasing to cover various edge cases (tech-speak for unusual situations) using as few words as possible.

So again: Judicious explanations, for the benefit of future readers, can be a happy compromise.

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