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firm:drafting:legal-instruments [2024/08/07 20:56] – adamfirm:drafting:legal-instruments [2025/09/29 17:21] (current) – admin
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 "Style" in this context also refers to the use of appropriate grammatical conventions, some of which are detailed in [[firm:drafting:style-guide|this wiki]]. "Style" in this context also refers to the use of appropriate grammatical conventions, some of which are detailed in [[firm:drafting:style-guide|this wiki]].
  
-==== Drafting principles ====+===== Drafting conventions =====
  
 +==== Definitions ====
  
 +Definitions are used sparingly to avoid altering the common meaning of words or phrases used in a contract. 
 +
 +This rule cuts against the grain of typical contract drafting but accords with the principles of legislative drafting. A typical contract will include extraneous and wholly unnecessary definitions that either provide the common meaning of words or phrases or define words and phrases that refer to the subject of the agreement. 
 +
 +The purpose of a definition is set out by the Uniform Law Conference of Canada in its //Drafting Conventions//:
 +
 +''18. (1) Definitions should be used sparingly since they alter the meaning of terms that may be inadvertently read without appreciating the definitions. They should be used only for the following purposes: ''
 +
 +''a. to avoid doubts about the application of a term or to delimit its application;'' 
 +
 +''b. to avoid excessive repetition; ''
 +
 +''c. to allow the use of an abbreviation; ''
 +
 +''d. to signal the use of an unusual or novel term.'' 
 +
 +These guidelines apply as much to contract drafting as to legislative drafting. They limit the use of definitions to cases of clear ambiguity or altering the common meaning of a word or phrase such that it bears a meaning specific to the contract.
 +
 +Definitions are located in either a general or specific definitions section. 
 +
 +  * A general definitions section appears in Part I, section 1 of the contract. This section will set out any definition that applies to the entire agreement or that may affect the entire agreement. 
 +  * Specific definitions are appear as interpretation sections that begin parts of the contract or as sub-sections in sections. These definitions will, as their name suggests, relate only to parts or sections of the agreement. 
 +  * The decision to create specific definitions may be made when a limited part of the contract requires a departure from a word or phrase's common meaning. In such cases, the reader will benefit from a definition that appears close to the rule that requires the definition.
  
 ===== Common clauses ===== ===== Common clauses =====
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 The following lines will be unnumbered and will detail definitions using the following phrase: The following lines will be unnumbered and will detail definitions using the following phrase:
  
-''"word or phrase to be defined" means''+''"[word or phrase to be defined]" means''
  
 the definition of the word or phrase is then provided.  the definition of the word or phrase is then provided. 
  
-Interpretation sections should only include terms that are being used in a technical or peculiar sense that requires definition. +Interpretation sections should only include terms that are being used in a technical or peculiar sense that requires definition. The tendency to define every term is not useful and only distracts from the substance of the agreement.  
 + 
 +A further, quite useful, interpretation provision arises when a statute controls the subject matter of the contract. This case often arises when dealing with corporations and, in such cases, the status already supercedes the contract--there is no point in fighting it. Instead of defining terms that may otherwise be defined in the statute, a clause may simply read: 
 + 
 +''[X] The definitions found in section [X] of the [INSERT STATUTE TITLE], as amended from time-to-time, are incorporated into this agreement.'' 
 + 
 +This provision will cause all the definitions from the referenced section to become incorporated by reference in the agreement. A drafter should take care not to unwittingly incorporate definitions that are at odds with the intended meaning of a word or phrase in the agreement. Blanket incorporation by reference must only be used when the drafter has reviewed the definitions and made sure that the agreement and statute properly use each defined term.
  
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