I have just been reviewing and amending the terms of service for the VoIP telephony service that I described in one of my case histories.
Most contracts contain an interpretation clause usually at the front. Often they also refer to provisions in the text that deal with such things as notices and termination. Just for fun I decided to bookmark the defined expressions and other frequently referred to clauses and then link to them by hypertext wherever they were referred to in the text.
I found it took a lot of the drudgery out of the drafting. It almost made proofing fun. More importantly, it helped me spot minor errors such as numbering or the use or failure to use capitals.
Such things can be important. Very many years ago, not long after I had finished pupillage I found myself in the Burton on Trent County Court against Lennie Hoffmann (now Lord Hoffmann) and his junior Nick Patten (now Lord Justice Patten) arguing over the construction of a statute that gave security of tenure for tied cottages. The meaning of one particular clause turned on punctuation and I urged the learned county court judge to adopt my construction which disregarded the comma. In his reply to my submissions, Lennie retorted that Sir Roger Casement was hanged on a comma.
All of this reminds me of the old ditty:
“I’m the parliamentary draftsman.
I draft the country’s laws.
Of half the litigation,
I wonder how much of the remaining litigation is the responsibility of the commercial draftsperson.