教你五十招写好合同英文版（一）

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　　Published in The Florida Bar Journal, Nov. 2000 Note: This article is for
background purposes only and is not intended as legal advice.
        　　Welcome to the 21st Century. Where practicing law requires us to don the
garb of computers and the Internet. And where litigation is as costly as ever.
Lawyer bills running $10,000 a month are not unusual in a hotly contested breach
of contract lawsuit. With every word, phrase and sentence carrying the potential
for winning or losing, the stakes are high. Simple logic, therefore, directs us
to cautious and thoughtful drafting.
        　　Drafting contracts is actually one of the simple pleasures of practicing
law. Just 3 years ago at this Convention I presented 50 tips for contract
writing. This article updates those tips in the context of our new tools and
abilities. Following these tips could result in your writing a contract so clear
no one will want to litigate it, saving your client from the trials and
tribulations of litigation, truly a good reason to write the contract that stays
out of court.
        　　These tips apply to writing all kinds of agreements: office leases, real
estate contracts, sales agreements, employment contracts, equipment leases,
prenuptial agreements. They even apply to stipulations and settlements in
litigation, where you want an agreement so clear that it avoids future
litigation. Wherever clarity and simplicity are important, these tips will guide
you there. The Appendix provides a few sample forms to illustrate these
tips.
        　　Before You Write the First Word
        　　1. Ask your client to list the deal points. This can be in the form of a
list, outline or narration. Doing this will help the client focus on the terms
of the agreement.
        　　2. Engage your client in "what if" scenarios. A good contract will
anticipate many possible factual situations and express the parties'
understanding in case those facts arise. Talking to your client about this will
generate many issues you may not otherwise consider.
        　　3. Ask your client for a similar contract. Frequently, clients have had
similar transactions in the past or they have access to contracts for similar
transactions.
        　　4. Search your office computer or the Internet for a similar form. Many
times you can find a similar form on your computer. It may be one you prepared
for another client or one you negotiated with another lawyer. Just remember to
find and replace the old client's name. Starting with an existing form saves
time and avoids the errors of typing. Here are some Web sites where you can find
forms: http://www.flcourts.org/ http://www.flabarrpptl.org/library.html
http://www.gate.net/~wyman/flo.html http://www.westgroup.com
http://www.lexis.com/
        　　5. Obtain forms in books or CD-ROM. Typical forms of contracts can be found
in form books, such as West's Legal Forms (a nationwide set) and Florida Jur
Forms, as well as in treatises and Florida Bar CLE publications. These can be
used as the starting point for drafting the contract or as checklists of typical
provisions and wording to include in the contract. Many treatises and form books
now come with forms on disk or CD-ROM.
        　　6. Don't let your client sign a letter of intent without this wording.
Sometimes clients are anxious to sign something to show good faith before the
contract is prepared. A properly worded letter of intent is useful at such
times. Just be sure that the letter of intent clearly states that it is not a
contract, but that it is merely an outline of possible terms for discussion
purposes. See Appendix C
        　　Writing that First Word
        　　7. Start with a simple, generic contract form. The form in Appendix A is
such a form. It provides a solid starting point for the structure of the
contract. Like a house, a contract must have a good, solid foundation.
        　　8. State the correct legal names of the parties in the first paragraph. As
obvious as this is, it is one of the most common problems in contracts. For
individuals, include full first and last name, and middle initials if available,
and other identifying information, if appropriate, such as Jr., M.D., etc. For
corporations, check with the Secretary of State where incorporated.
        　　9. Identify the parties by nicknames. Giving each party a nickname in the
first paragraph will make the contract easier to read. For example, James W.
Martin would be nicknamed "Martin."
        　　10. Be careful when using legal terms for nicknames. Do not use
"Contractor" as a nickname unless that party is legally a contractor. Do not use
"Agent" unless you intend for that party to be an agent, and if you do, then you
better specify the scope of authority and other agency issues to avoid future
disagreements.
        　　11. Include a blank for the date in the first paragraph. Putting the date
in the first paragraph makes it easy to find after the contract is signed. It
also makes it easy to describe the contract in other documents in a precise way,
such as the "December 20, 2000, Contract for Sale of Real Estate."
        　　12. Include to provide background. Recitals are the "whereas" clauses that
precede the body of a contract. They provide a simple way to bring the
contract's reader (party, judge or jury) up to speed on what the contract is
about, who the parties are, why they are signing a contract, etc. The first
paragraph in the body of the contract can incorporate the recitals by reference
and state that they are true and correct. This will avoid a later argument as to
whether or not the recitals are a legally binding part of the contract.
            
            

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        　　13. Outline the contract by writing out and underlining paragraph headings
in their logical order. The paragraphs should flow in logical, organized
fashion. It is not necessary to write them all at once; you can write them as
you think of them. Try to group related concepts in the same paragraphs or in
adjacent paragraphs. For example, write an employment contract's initial
paragraph headings like this:Recitals. Employment. Duties. Term.
Compensation.
        　　14. Complete each paragraph by writing the contract terms that apply to
that paragraph. This is simple. You learned this in elementary school. Just
explain in words what the parties agree to do or not do paragraph by
paragraph.
        　　15. Keep a pad at hand to remember clauses to add. It is normal to think of
additional clauses, wording and issues while writing a contract. Jot these down
on a pad as you write; they are easily forgotten. Also keep your client's
outline and other forms in front of you as you write, and check off items as you
write them.
        　　16. Repeat yourself only when repetition is necessary to improve clarity.
Ambiguity is created by saying the same thing more than once; it is almost
impossible to say it twice without creating ambiguity. Only if the concept is a
difficult one should you write it in more than one way. In addition, if you use
an example to clarify a difficult concept or formula, be sure that all possible
meanings are considered and that the example is accurate and consistent with the
concept as worded.
        　　What to Watch Out for When Writing
        　　17. Title it "Contract." Do not leave this one to chance. If your client
wants a contract, call it a contract. A judge now sitting on the federal bench
once ruled that a document entitled "Proposal" was not a contract even though
signed by both parties. The lesson learned is, "Say what you mean." If you
intend the document to be a legally binding contract, use the word "Contract" in
the title.
        　　18. Write in short sentences. Short sentences are easier to understand than
long ones.
        　　19. Write in active tense, rather than passive. Active tense sentences are
shorter and use words more efficiently, and their meaning is more apparent.
Example of active: "Sellers shall sell the Property to Buyer." Example of
passive: "The Property shall be sold to Buyer by Seller."
        　　20. Don't use the word "biweekly." It has two meanings: twice a week and
every other week. The same applies to "bimonthly." Instead, write "every other
week" or "twice a week."
        　　21. Don't say things like "active termites and organisms". Avoid ambiguity
by writing either "active termites and active organisms" or "organisms and
active termites." When adding a modifier like "active" before a compound of
nouns like "termites and organisms", be sure to clarify whether you intend the
modifier to apply to both nouns or just the first one. If you intend it to apply
to both, use parallel construction and write the modifier in front of each noun.
If you intend it to apply to just one noun, place that one noun at the end of
the list and the modifier directly in front of it.
        　　22. Don't say "Lessor" and "Lessee." These are bad nicknames for a lease
because they are easily reversed or mistyped. Use "Landlord" and "Tenant"
instead. The same applies to lienor and lienee, mortgagor and mortgagee, grantor
and grantee, licensor and licensee, party A and party B. This is where you can
use your creativity to come up with a different nickname for a party, as long as
you use it consistently throughout the contract.
        　　23. Watch out when using "herein." Does "wherever used herein" mean
anywhere in the contract or anywhere in the paragraph? Clarify this ambiguity if
it matters.
        　　24. Write numbers as both words and numerals: ten (10). This will reduce
the chance for errors.
        　　25. When you write "including" consider adding "but not limited to." Unless
you intend the list to be all-inclusive, you had better clarify your intent that
it is merely an example.
        　　26. Don't rely on the rules of grammar. The rules of grammar that you
learned in school are not universal. The judge or jury interpreting the meaning
of your contract may have learned different rules. Write the contract so that no
matter what rules they learned, the contract is clear and unambiguous. Follow
this test for clear writing: Remove all periods and commas, then read it.
Choosing the right words and placing them in the right place makes the writing
clear without punctuation.
        　　27. Don't be creative with words. Contract writing is not creative writing
and is not meant to provoke reflective thoughts or controversies about nuances
of meaning. Contract writing is clear, direct and precise. Therefore, use common
words and common meanings. Write for the common man and the common woman.
        　　28. Be consistent in using words. If you refer to the subject matter of a
sales contract as "goods" use that term throughout the contract; do not
alternately call them "goods" and "items." Maintaining consistency is more
important than avoiding repetition. Don't worry about putting the reader to
sleep; worry about the opposing lawyer a year from now hunting for ambiguities
to get your contract into court.
        　　29. Be consistent in grammar and punctuation. The rules of grammar and
punctuation you learned may differ from others, but you had better be consistent
in your use of them. Be aware of such things as where you put ending quote
marks, whether you place commas after years and states, and similar variations
in style.
        　　30. Consider including choice of law, venue selection, and attorneys fee
clauses. If your contract gets litigated, you might as well give your client
some "ammunition" for the fight. Examples of these clauses appear in Appendices
A and C.
        (兼职编辑：段保净）