I was reading a rather long document this past week when I noticed a significant amount of redundancy. In case you haven’t ever seen this, it’s the practice of double-stating a particular idea, concept or phrase. It is usually done as a result of that idea actually being “at home” in more than one place in a contract (such as an audit right/obligation, a service level metric, etc). If my own experience is any guide, it’s also the result of a document that was written and re-written many times, over a long period, by multiple authors.
While this doesn’t make it a bad practice or a bad idea, it is worth noting and considering with respects to your own templates. Redundancy in a document is problematic for two main reasons. First, it’s confusing for the reader (your customer, provider, etc). As someone who’s on the “other side” of a deal almost every day, I can tell you that I do not like reading documents that contain multiple redundancies. It makes me a bit uneasy and a little distrustful. I find myself having to flip back and forth throughout the whole contract making sure that the concepts and language covered in one place are the same as they are in the other. This also tends to make me feel like I’m wasting my time – especially when the document is already long or drawn out.
Second, remember that in most cases, contract language during a dispute will be construed against the drafter. Even contract sections that try to apportion this risk by saying that the parties agree that this contract represents the meaning and intention of both parties and should not be considered the work of either party really doesn’t remove the likelihood that your redundancy could land you in trouble if the two sections aren’t identical. Does your template agreement have your organization’s logo on it? Does it have your organization’s name throughout the document and use a generic term to describe your opponent? Are you a giant corporation and your opponents are small? Overall, do you think a court will be swayed by that attempt to rid yourself of the liability?
Reading the contract to favor the non-drafting party will lead to a situation whereby the better of the two paragraphs for the non-drafting party will be the binding paragraph. So, while you may want to state, re-state and triple-state your ideas… don’t. Say them once with your true intent. In plain, simple, language. Promote clarity, not obfuscation.
ps. Have a very Happy Holiday season (Christmas, Hannukah, Kwanzaa, New Year)!