Module 4

COMMERCIAL
CONTRACTS

CERTIFICATE COURSE

DEVELOPED BY
Corp Comm Legal

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MODULE - 4

BALANCING DRAFT

4.1 Introduction toDrafting 4.1.1 What is a “draft” ?

Drafting is a science and can be acquired only by long In a general sense, it is an outline of a document or of
practice. In simple terms, drafting refers to the act of something that needs to be done. One may prepare
writing legal documents. The key feature of drafting it as a rough sketch of a document from which a final
is that it presents a brief knowledge about the document isprepared.
significant facts of the situation or issue. Drafting
demands a lot of skills combined with patience from Terminology
the advocates. A properly drafted document aims at
accuracy andtruth. Draftsman - One who draws documents like a will,
gift deed etc.
The whole process of drafting should follow three
drafts before it is ready to be presented before the Dragoman:One who interprets pleadings and other
authority. These drafts and their purposes are:- writings.

The first draft - Aims at the 4.1.2 Principles of“Drafting”
comprehensiveness and fullness of the facts.
The process of drafting is generally governed by 4
The second draft - Aims at the improving of principles:
the first draft by the correction of the form and
the language by a considerable amount of Formation of outline in a satisfactory
trimming. manner: -“The draft is the skeleton of a document.”
This statement suggests that the prepared draft
The final draft - As the name suggests, it aims should be elaborate and should address all
at giving a final touch and the finish up to make important issues. In a nutshell, a draft should be:
the document authoritative and able to convince.
As detailed as possible
Not be vague

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Able to fulfill the consideration of 4.1.3 Physical Characteristics of a Draft
relevancy, content unity, chronology and
coherence. Numbering of each page
Numbering of preliminaries in Roman
Such that every paragraph should Numbers (i, ii, iii) and Main Text in Arabic (1, 2, 3 etc.)
contain one major point. Number of pages should appear in the upper
right corner 2.5 cms., from the top and side
Emphasis on the arrangement of facts: – A The body of the document to be double spaced
deep emphasis should be put on the manner in which normally.
the facts of the case are arranged. The facts should Each paragraph should be intended 5 spaces
be arranged step by step to reflect an organized and every paragraph should be numbered.
analysis of the problem. There must be uniformity All sheets to be strongly tied together.
and consistency in the presentment of ideas.
4.1.4 Rules of Drafting
Style and language: – Style is an important
factor for the transport of ideas. A clear Following set of rules should be followed: –
presentation is an essential requirement for clear
thinking. The style should be simple with the most Before making a draft, a design of it should
appropriate use of legal terms that would convey the first beconceived.
facts in a precise and simple manner. The language
too should be simple and faultless. Illogical One should make sure that none of the facts
paragraphing, poor punctuation, incorrect spelling are omitted or admitted at random.
and other such language that virtually render a
promising document to be worthless shall be Negative statements should generally be
avoided. Repetitions should be avoided. avoided.

Physical characteristics:–Thedraft shouldbe Technical language should be followed.
typed on standard quality paper (20 by 30 cms) with The legal language employed should be
margins of 4 cms. at the top and left side and 2.5 to 4 precise and accurate.
cms. on the right side and bottom. Draft should be readily intelligible.
Due care and attention should be placed on
the rules of legal interpretation and the case law
pertaining to the related matter.

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The drafted document should be clearly Know the motive behind writing
understood by a person who has competent Write from the reader’s point of view
knowledge of the subject matter. Make an outline (mental or written)

The draft should be self-explanatory as far as 4.1.6 DON’Ts ofDrafting
possible.
Avoid moving around about constructions
The draft should be divided into paras and Avoid unnecessaryrepetitions
each para should contain a distinct subject matter. Avoid using words containing similar sounds
Avoid cumulative negative statements
Arrangement of facts should be done logically Avoid typingmistakes
Use numbers and letters for sub-clauses and
paragraphs. 4.2 Three fundamentals for excellent Drafting
Choices of words should be such that they
easily convey the meaning of the writer. a. Purpose - Determining your purpose in advance
The words used should reflect politeness in minimizes the chances of mistakes so instead of
order to convey more in a kind, natural and directly producing it try to pause, think and
justifiable manner. articulate.
The draft should be read once or twice before
passing it for consideration. b. Client - Knowing your client and what they care
about is a huge chance to score some points.
4.1.5 DO’s ofDrafting Determining your primary client and taking into
account their context will give your legal writing a
For improving the quality of the draft, a group huge boost. Sometimes a letter might be written
of words should be reduced to one. both for your client and for the other lawyer.
Perhaps it’s for the mediator but also for the other
One simple word for a group should be lawyer’s client to consider.
formulated.
c. Tone - Tone is perhaps the hardest element to
Shorter sentences should be written master. It’s the language you use to create the
Add periods emotional response that you desire.
Express the whole idea in few words
Prefer active over passive
Make verbswork
Choose the right word

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Are you seeking to be:- you will probably assume a certain amount of
background knowledge without waxing lyrical about
conciliatory the ins and outs of the bankruptcy process.
bullish
aggressive 2. Letters to “once off” or unsophisticated clients
demanding (say an individual requesting advice on a taxation
non-responsive matter) might require changes in terms of the
casual language used. Tone down the complexity, use a
chatty different sentence structure and avoid the use of
formal industry specificjargon.
determined
dismissive? 3. In Court submissions generally the look and
feel of these documents is set. However, the content
There are many options, and your tone is what’s still needs to be importantly considered. In this case,
going to affect the feeling that people get when they don’t forget that your job is to persuade, not to
read your draft. Of course, as with client, you need to advice. You are trying to explain to the Court why it
be careful about who you’re targeting and the should accept your approach to a particular set of
impact it’s going to have. facts when applying the law. Both parties will know
the law and both will know the facts that are
4.3 Guide towriting asserted – each, however, will have materially
a. Drafting requires knowledge of your client different submissions. Your job is to make your side
of the argument persuasive, while still ensuring you
The more you know about your client the better you comply with your duties of frankness and candor
will be able to write for their benefit. Although the
concept is broad, here are a few examples of how b. Have a good structure
knowing your recipient is important:
Even the shortest document should have a good
1. A sophisticated client (let’s say a bank) will not structure.Moreover, the framework ofyour product
always require complex explanations of otherwise will dramatically impact the effect you have. No
straightforward tasks. If you are discussing matter the subject, however, a deliberate and
bankruptcy with the debt collection department, meaningful structure has to be considered. If your

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words have just fallen onto the page then step back a. Unilateralism
– think – and ensure the big picture is correct.
Be prepared for vetting, review without necessarily
c. Be clear accepting casual and non-contextual suggestions.
Clarity as to the bare minimum contents you require
Be clear as to what the document means to say, does for protecting and safeguarding your interest has to
not mean to say and need not say. Make your self- be adheredto.
well-versed with various provisions of laws the legal
document dealswith. b. Remember thechronology

d. Remove theambiguity If the document is supplementary to any other
master document/s make sure to comply with
Try to clear all the ambiguous instances from the master documents and other supplements as well. If
document. The statements made in the documents needed, draft the details of the other documents in a
should not communicate more than one concept. chronological order

e. Be precise c. Define importantthings

The matter to be covered by a draft should be Include a chapter of definitions to define and explain
precise and concise. It must convey the complete the important technical concepts relating to the
message for which it is prepared. The reader should document. Make sure to adhere to the definitions
feel inspired by it. throughout the document. The chapter containing
the definitions is placed at the beginning of the
f. Clarity document.

There must be clarity and preciseness not only in d. Adaptability
each sentence but also in the overall presentation of
the draft. There must be a nexus between sentences The matter to be included in a draft must be
and different paragraphs. The draft shall be in adaptable to the factual position, to the
sequence and relevant to the subject matter. circumstances of the case and feasible/suitable to
the enforcement.

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e. Lucidity f. Be Logical

The language and words used while drafting must be The risk of omission and repetition is minimized.
lucid, simple and appropriate to the situation. There Comply with incidental mandatory requirements
should not be longer sentences or paragraphs. It such as stamping of documents, registration, vetting,
must convey the message involved in it to a person etc. Respect precedent and forms without
of ordinary prudence. The language must be polite converting yourself into a mechanical follower, so
and make the other side form a good opinion. that allegations like “non-application of mind” or “cut
and paste” technologist can be avoided.

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