March 04, 2004

Legal Writing Rant

Every now and then, I run across some really clunky contract language. I keep a running list of the worst. Today I found a truly awful one:

"Services. Supplier warrants that all Services and/or work performed under this Agreement shall be performed in a diligent, work-person like and professional manner, in compliance with industry standards, and in accordance with all specifications, drawings, instructions and or documentation as agreed upon by the Parties in this Agreement or a statement of work ("SOW") that will be attached to this Agreement or an SPA or Service Order and incorporated by reference hereof or as otherwise documented in a writing signed by both Parties."

First off, ignore the use of shall, the use of the passive voice, and the double use of and/or (a crutch for the lazy-minded lawyer who can't understand a Venn diagram). Ignore, too, that this is one run-on sentence. Focus instead on that gem of political correctness: work-person like. Compare the previous section:

"Product. Supplier warrants to Company and End User Customers that Products furnished will be new, merchantable, free from defects in material and workmanship and will conform to and perform in accordance with the specifications. These warranties extend to the future performance of the Products and shall continue for the longer of (a) [x] years after the Product is accepted by Company; or (b) such greater period as may be specified elsewhere in this Agreement including a specific project agreement ("SPA ")."

Why isn't that "free from defects in material and work-person ship?" Don't get me wrong. I strongly prefer to use gender-neutral language wherever possible, by recasting or substituting neutral words for masculine ones. (And I abhor the largely academic tendency to apply the goose/gander justice that makes all indefinite subjects feminine instead of masculine). I sometimes use the singular they, which although still not widely accepted, has a long and distinguished pedigree.

I'll even use humanity or humans in place of mankind (though I'm sure Jay Nordlinger would disapprove). But work-person like? There is no such thing.

While I would welcome comments on gender-neutral versions of workmanlike or workmanship, I think it's possible to redraft just as effective a clause without using the offending terms:

"Services. Supplier warrants that it will provide Services diligently and professionally and that they will comply with all applicable industry standards, specifications, drawings, and documentation under this Agreement." [Omit the rest; in a well-drafted agreement with tight definitions, a good amendment clause will take care of the remainder here].

That's all for the writing lesson today.

P.S. Until I get a link to my own terms of use here, I incorporate these by reference. Go read them.

Posted by JohnL at March 4, 2004 10:55 PM
Save This Page