Contract 'busts': Trying to decipher provisions that literally make no sense
Consider an example from an apartment lease. The drafter has adopted the ghastly practice of putting party designations in all-caps:
“LESSEE shall not, without the LESSOR’s written consent, make any alteration in the Leased Premises and LESSEE will not deface or permit the defacing of any part of the Leased Premises. LESSEE shall not do or suffer anything to be done on the Leased Premises which will increase the rate of fire insurance on the building. LESSEE shall not use any shades, awnings, or window guards, except such as shall be approved by Landlord. LESSEE will not keep or harbor any animal in the Leased Premises without first obtaining the written consent of LESSOR. LESSEE will not permit the accumulation of waste or refuse matter. LESSEE will not assign this Lease or underlet the Leased Premises or any part thereof without the LESSEE’s written consent, which consent must not be unreasonably withheld by LESSOR.”
The shouting of names is distracting, to say the least. The all-caps names detract from anyone’s ability to read the paragraph. Then there’s the weird switch from shall in the first three obligations to will for the last three. Then there’s the incorrect use of shall (nonmandatory) in the fourth instance. Then there’s the switch from permit in the first sentence to the archaic suffer in the second. Then there’s the odd phrase refuse matter, in which many ordinary readers would read refuse as a verb: the tenant will not refuse matter. But, of course, the intent is to use refuse in its noun sense, with the redundant word matter. Wouldn’t the plain word trash suffice?
But did you notice the bust in that passage? The final instance of lessee should be lessor. This is a silly error—but one that could cause the landlord many a headache.
A better way
Granted, you might use surnames in a contract like this one, but if your client is a landlord with many tenants, positional labels may be best. They must be different in form: Landlord and Tenant would be much preferable to Lessor and Lessee. You’re far less prone to error that way. Here’s how that provision might read:
3.2 Prohibited Activities. Tenant must not:
- make any alteration in the Leased Premises without first obtaining the Landlord’s written consent;
- use any shades, awnings or window guards without first obtaining the Landlord’s written consent;
- keep or harbor any animal in the Leased Premises without first obtaining the Landlord’s written consent;
- assign this Lease or sublet any part of the Leased Premises without first obtaining the Landlord’s written consent;
- deface or permit the defacing of any part of the Leased Premises;
- do or permit anything to be done on the Leased Premises that will increase the cost of fire insurance; or
- permit the accumulation of waste or trash.
That’s a fairly simple redraft. It adds a helpful heading. It uses vertical listing, which results in tighter wording. It simplifies the language, thereby promoting better compliance by a tenant who now has a better chance of comprehending what’s prohibited. And it groups the items more sensibly. Concededly, other organizational strategies would be possible.
You might have noticed that I completely eliminated the requirement of not unreasonably withholding consent to subletting. If you represent the landlord, you surely don’t want that. Why not just allow your client to have full discretion? You don’t want to impose unnecessary burdens on the client.
In any event, the big point is that we’ve eliminated the bust: the misidentification of a party. When you adopt sounder practices in contractual drafting, you promote critical thinking and prevent error.
Bryan A. Garner ([email protected]), president of LawProse Inc., has taught contractual drafting for more than 25 years at law firms and more than three dozen Fortune 500 companies. He has redrafted contracts for banks, car manufacturers, credit-card companies, insurance companies, oil-and-gas companies, real-estate developers, soft-drink manufacturers, technology companies and telecommunications companies. His forthcoming book is Garner’s Guidelines for Drafting and Editing Contracts. Follow on Twitter @BryanAGarner.
