January 10, 2019
The Discipline of Stated Purposewrite out the purposes of legal terms in contracts
Whenever you draft contract language, write and include a general statement of purpose along with your specific terms.
The purpose of this agreement is to ….
The purpose of section 2 is to ….
The purpose of the exhibit agreement is to …
Writing improves understanding. Technically flawless terms that miss the client’s purpose fail the client. Applying our best clarifying tool—careful writing—to terms, but not to purposes, makes no sense. To choose a formulation suited to purpose, we must understand both.
There are no perfect legal terms. The best legal language always fails to diffuse some latent conflict risks. When we choose among formulations for a term, we choose among such gaps. We choose gaps that do not coincide with the largest risks to a particular client.
Purpose statements in the four corners help courts when language fails. Without purpose statements, courts have to work backwards from terms to purpose, or even worse, apply totally generic rules of construction.
Purpose statements give clients faith. Some clients will read every word you write for them. It’s nice to be noticed, but that’s a waste of time. Attention spent seeing and feeling one’s purpose expressed by one’s lawyer in concrete terms, on the other hand, builds confidence in lawyer and contract. Confidence makes further waste unnecessary.
Purpose statements help you. Write a purpose statement, then write terms achieving that purpose. Switch back and forth between them, comparing, until your draft settles out. When the purpose statement achieves everything the terms do, in plainer language, replace the terms with the purpose statement. Your draft gains clarity.
The discipline of stated purpose has helped my drafting many times, because I continue to practice it. Writing out purpose can serve as a mere exercise, attempted once to experiment or prove a point. But stated purpose is far more effective as a repeated part of everyday work process. As a discipline, a check, a method.
For example, in writing public licenses for software, I’ve been asked to write terms that assure licensees that they won’t be sued under intellectual property law for using the licensed software. Traditionally, intellectual property lawyers fulfill that purpose by writing copyright license grants that list out all the exclusive rights of copyright holders and patent licenses that list all the means of infringing a patent.
I’d written an overall license purpose like so:
Give licensees permission to do everything with the software.
And a copyright license purpose like so:
Give licensees permission to do everything that would otherwise count as copyright infringement.
And a license grant like this:
Licensor grants you a license to reproduce, prepare derivative works of, publicly display, publicly perform, … the software.
What was gained from listing out all the exclusive rights of copyright holders? Nothing. What would be gained by referencing 17 USC 106, or the Copyright Act as a whole? Nothing.
Clients don’t know what the exclusive rights of copyright holders are. They don’t know they appear in the Copyright Act or Title 17 of the United States Code. They wouldn’t know if my list of rights matches the list in the Act, made up new rights, or omitted crucial others. But none of that’s needed or helpful. Not for the client. Not for the counterparty. Not for me, or my counterpart, or a hypothetical judge.
I replaced the license grant with something like:
Licensor grants you a license to do everything with the software that would otherwise infringe copyright in the software.
My language was plainer. My clients could read it. I put the relationship between purpose and terms in writing, and by writing, that relationship was improved.
Your thoughts and feedback are always welcome by e-mail.
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