Legal Drafting: Meaning & Rules
DRAFTING –THE MEANING
• Drafting may be defined as the synthesis of law and fact in a language
form[Stanley Robinson: Drafting Its Application to Conveyancing and Commercial
Documents (1980); (Butterworths)
• It is the development and preparation of legal instruments such as constitutions,
statutes, regulations, ordinances, contracts, wills, conveyances, indentures, trusts
and leases, etc.
• The process of drafting operates in two planes: the conceptual and the verbal.
Besides seeking the right words, the draftsman seeks the right concepts. Drafting,
therefore, is first thinking and second composing
• Drafting, in legal sense, means an act of preparing the legal documents like
agreements, contracts, deeds etc
• Drafting of legal documents requires, as a pre-requisite, the skills of a draftsman,
the knowledge of facts and law so as to put facts in a systematized sequence to
give a correct presentation of legal status, privileges, rights and duties of the
parties, and obligations arising out of mutual understanding or prevalent customs
or usages or social norms or business conventions, as the case may be, terms and
conditions, breaches and remedies.
CONVEYANCING — ITS MEANING
• Technically speaking, conveyancing is the art of
drafting of deeds and documents whereby land or
interest in land i.e. immovable property, is transferred
by one person to another; but the drafting of
commercial and other documents is also commonly
understood to be included in the expression
• Mitra’s legal and commercial dictionary defines
“conveyance” as the action of conveyancing, a means
or way of conveyancing, an instrument by which title
to property is transferred, a means of transport,
vehicle.
DRAFTING AND CONVEYANCING:
DISTINGUISHED
• Both the terms “drafting and conveyancing” provide
the same meaning although these terms are not
interchangeable.
• Conveyancing gives more stress on documentation
much concerned with the transfer of property from
one person to another, whereas“drafting” gives a
general meaning synonymous to preparation of
drafting of documents.
• Document may include documents relating to
transfer of property as well as other “documents”
DISTINCTION BETWEEN CONVEYANCE AND
CONTRACT
• The distinction between conveyance and contract is quite clear.
• Contract remainsto be performed and its specific performance
may be sought but conveyance passes on the title to property
to another person.
• Conveyance does not create any right of any action but at the
same time it alters the ownership of existing right.
• There may be cases where the transaction may partake both
contract as well as conveyance.
• For example, lease, whereby obligation is created while
possession of the property is transferred by lessor to lessee.
• More so, contracts are governed by provisions
GENERAL PRINCIPLES OF DRAFTING ALL SORTS OF
DEEDS AND CONVEYANCING AND OTHER WRITINGS
• Fowlers’ rules of drafting According to Fowler
• Sketch or scheme of the draft document
• Skelton draft and its self-appraisal
• Special attention to be given to certain
documents
• Expert’s opinion
Fowlers’ rules of drafting According to
Fowler
• Prefer the familiar word to the far fetched (familiar words are
readily understood).
• Prefer the concrete word to the abstract (concrete words make
meaning more clear and precise).
• Prefer the single word to the circumlocution (single word gives
direct meaning avoiding adverb and adjective).
• Prefer the short word to the long (short word is easily grasped).
• Prefer the Saxon word to the Roman (use of Roman words may
create complications to convey proper sense to an ordinary
person to understand)
• Always prefer active voice to the passive voice in the drafting of
documents.
Sketch or scheme of the draft document
• It is always advisable to sketch or outline the contents of a
document before taking up its drafting.
• “The first rule on which a draftsman must act is this-that
before his draft is commenced, the whole design of it
should be conceived, for if he proceeds without any settled
design, his draft will be confused and incoherent, many
things will be done which ought to be done and many left
undone which ought to be done. He will be puzzled at
every step of his progress in determining what ought to be
inserted and what is to guide him in his decision because
he does not know what his own object is.
Skelton draft and its self-appraisal
After the general scheme of the draft has been
conceived, the draftsman should note down
briefly the matters or points which he intends to
incorporate in his intended draft.
Special attention to be given to certain
documents
Certain documents require extra care before
taking up the drafting.
Expert’s opinion
If the draft document has been prepared for the first time to be used again and again
with suitable modification depending upon the requirements of each case it should be
got vetted by the experts to ensure its suitability and legal fitness if the corporate
executive feels it so necessary.
To sum up, the draftsman should bear in mind the following principles of drafting:
• As far as possible the documents should be self-explanatory.
• The draftsman should begin by satisfying himself that he appreciates what he
means to say in the document.
• The well drafted document should be clear to any person who has competent
knowledge of the subject matter.
• The draft must be readily intelligible to layman.
• The document may not be perfect because it says too much or too little or is
ambiguous or contains one or more of the facts because it has to be applied in
circumstances which the draftsman never contemplated. This should be avoided in
the drafting of the documents.
• Nothing is to be omitted or admitted at random on the document that is to say
negative statements should generally be avoided.
• Use of juridical language should be made.
Some Do’s
• Reduce the group of words to single word;
• Use simple verb for a group of words;
• Avoid round-about construction;
• Avoid unnecessary repetition;
• Write shorter sentences;
• Express the ideas in fewer words;
• Prefer the active to the passive voice sentences;
• Choose the right word;
• Know exactly the meaning of the words and sentences you are
writing; and
• Put yourself in the place of reader, read the document and satisfy
yourself about the content, interpretation and the sense it carries.
Some Don’ts
The following things should be avoided while drafting the documents:
• Avoid the use of words of same sound. For example, the words “Employer” and
“Employee”;
• When the clause in the document is numbered it is convenient to refer to any
one clause by using single number for it. For example, “in clause 2 above” and
so on.
• Negative in successive phrases would be very carefully employed.
• Draftsman should avoid the use of words “less than” or “more than”, instead,
he must use “not exceeding”.
• If the draftsman has provided for each of the two positions to happen without
each other and also happen without, “either” will not be sufficient; he should
write “either or both” or express the meaning of the two in other clauses. In
writing and typing, the following mistakes always occur which should be
avoided: 1. “And” and “or”; 2. “Any” and “my”; 3. “Know” and “now”;
Legal Implications and Requirements
• Double and doubtful meaning of the intentions given
shape in the document.
• Inherent ambiguity and difficulties in interpretation of
the documents.
• Difficulties in implementation of the objectives desired in
the documents.
• Increased litigation and loss of time, money and human
resources.
• Misinterpretation of facts leading to wrongful judgment.
• Causing harm to innocent persons.
Deeds
• Having understood, the meaning of drafting and conveyancing it
is necessary to familiarize with various terms such as deeds,
documents, indentures, deed poll etc. These terms are frequently
used in legal parlance in connection with drafting and
conveyancing. Out of these, the meaning of deeds and
documents, have a common link, and used in many a time
interchangeably, but it is very essential to draw a line in between
• Deed In legal sense, a deed is a solemn document. Deed is the
term normally used to describe all the instruments by which two
or more persons agree to effect any right or liability. To take for
example Gift Deed, Sale Deed, Deed of Partition, Partnership
Deed, Deed of Family Settlement, Lease Deed, Mortgage Deed
and so on. Even a power of Attorney has been held in old English
cases to be a deed. A bond is also included in the wide compass of
the term deed..
A deed is a writing:
• on paper, vellum or parchment,
• sealed, and
• delivered, whereby an interest, right or
property passes, or an obligation binding on
some persons is created or which is in
affirmance of some act whereby an interest,
right or property has been passed.
Document
• “Document” means any matter expressed or
described upon any substance by means of
letters, figures or marks, or by the more than
one of those means, intended to be used, or
which may be used, for the purpose of
recording that matter. Illustration: A writing is
a document. Words printed, lithographed or
photographed are documents. A map or plan
is a document
Various Kinds of Deeds
Particular statutory definitions cover different sets of deeds. In the re-
statement of American Law in CorpusJurisSecundum, the following kinds of
deeds have been explained:
• A good deed is one which conveys a good title, not one which is good
merely in form.
• A good and sufficient deed is marketable deed; one that will pass a good
title to the land it purports to convey.
• An inclusive deed is one which contains within the designated
boundaries lands which are expected from the operation of the deed.
• A latent deed is a deed kept for twenty years or more in man’s escritoire
or strong box. A lawful deed is a deed conveying a good or lawful title.
• A pretended deed is a deed apparently or prima facie valid.
• A voluntary deed is one given without any “valuable consideration”, as
that term is defined by law,
• A warranty deed is a deed containing a covenant of warranty.
Components of Deeds
The usual parts or components or clauses of deeds in general are mentioned as
follows:
1. Description of the Deed Title.
2. Place and Date of execution of a Deed.
3. Description of Parties to the Deed.
4. Recitals.
5. Testatum.
6. Consideration.
7. Receipt Clause.
8. Operative Clause.
9. Description of Property.
10. Exceptions and Reservations.
11. Testimonium Clause.
12. Signature and Attestation.