写好合同的五十招(二)-商务书信

写好合同的五十招(二)

26. Don‘‘t rely on the rules of grammar. The rules of grammar that you learned in school are not universal. The judge or jury interpreting the meaning of your contract may have learned different rules. Write the contract so that no matter what rules they learned, the contract is clear and unambiguous. Follow this test for clear writing: Remove all periods and commas, then read it. Choosing the right words and placing them in the right place makes the writing clear without punctuation.

 

27. Don‘‘t be creative with words. Contract writing is not creative writing and is not meant to provoke reflective thoughts or controversies about nuances of meaning. Contract writing is clear, direct and precise. Therefore, use common words and common meanings. Write for the common man and the common woman.

 

28. Be consistent in using words. If you refer to the subject matter of a sales contract as "goods" use that term throughout the contract; do not alternately call them "goods" and "items." Maintaining consistency is more important than avoiding repetition. Don‘‘t worry about putting the reader to sleep; worry about the opposing lawyer a year from now hunting for ambiguities to get your contract into court.

29. Be consistent in grammar and punctuation. The rules of grammar and punctuation you learned may differ from others, but you had better be consistent in your use of them. Be aware of such things as where you put ending quote marks, whether you place commas after years and states, and similar variations in style.

 

30. Consider including choice of law, venue selection, and attorneys fee clauses. If your contract gets litigated, you might as well give your client some "ammunition" for the fight. Examples of these clauses appear in Appendices A and C.

 

Write for the Judge and Jury

31. Assume the reader is a knowledgeable layman. If your writing is so clear that a layman could understand it, then it is less likely it will end up in court.
32. Define a word by capitalizing it and putting it in quotes. Capitalizing a word indicates that you intend it to have a special meaning. The following are two sample clauses for defining terms:
Wherever used in this contract, the word "Goods" shall mean the goods that Buyer has agreed to purchase from Seller under this contract.Buyer hereby agrees to purchase from Seller ten (10) frying pans, hereinafter called the "Goods."

 

33. Define words when first used. Instead of writing a section of definitions at the beginning or end of a contract, consider defining terms and concepts as they first appear in the contract. This will make it easier for the reader to follow.

 

34. Explain technical terms and concepts. Remember that the parties might understand technical jargon, but the judge and jury who interpret and apply the contract do not. Therefore, explain the contract‘‘s terms and concepts within the contract itself. Let the contract speak for itself from within its four corners.

 

Keep Your Client Informed While You Write

35. All contracts should come with a cover letter. This gives you a place to instruct your client on how to use and sign the contract.

 

36. Tell your client the ideas that come as you write. Many ideas will occur to you as you write: things that could go wrong with the deal, things that might happen in the future, things that happened in the past, ways to structure things better. Write these in your letter to the client.

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37. Inform your client of the risks. Writing a letter to the client as you write the contract is the perfect way to inform the client of the risks and rewards of entering into the contract. Frequently, problems do not become apparent until time is spent trying to word a contract.

 

What To Do After the First Draft Is Written

38. Check spelling, paragraph numbering, and cross references both manually and with your word processor‘‘s spelling and grammar checker. This almost goes without saying today, especially since Microsoft Word now checks your spelling and grammar as you type. (Unfortunately it also changes "per stirpes" to "per stupid" if you fail to watch it closely.) And now there are even computer programs that check contract documents for undefined terms. DealProof is packaged with Corel WordPerfect for law offices, and DocProofReader is available for download for MS Word 97 and 2000.

39. Let your secretary or paralegal read it. Not only will your staff frequently find spelling and grammar errors missed by your word processor‘‘s spell checker, but they will find inconsistencies and confusing areas that you missed when drafting.

 

40. Stamp "Draft #1 6/22/2000" on it. This may be the first of many drafts, so avoid confusion early by numbering and dating all drafts at the top of the first page. It is also a good idea to write "DRAFT" across the face of each page to preclude the possibility of an impatient client signing a draft rather than waiting for the final version.

 

41. Let your client read it. Letting the client in on reading the first draft assures that your drafting will stay in tune with the client‘‘s wishes.

42. Save the drafts as multiple files on your computer. If you save the first draft on your computer as two files, you will have one file identified as the first draft and the other identified as the current version. This can be done by naming the current version "contract" and the first draft as "contract.d1." Then, subsequent versions can be named "contract.d2", "contract.d3," etc., where the "d" in the extension indicates draft. (Of course, if you‘‘re not using WordPerfect 5.1 for DOS, as I do, you can use long file names to show the contract name, draft number and draft date, such as "Contract Smith Jones draft 2 datd 6 22 2000.")

 

43. Compare the current version to prior versions. If you save draft versions, it is very easy to compare one version to another using the word processor‘‘s compare feature or using the CompareRite computer program. When you compare "contract.d1" to "contract.d2", save the comparison as "contract.c21" and print it to show the client what changes were made.

How to Print and Sign the Final Draft

44. Print the contract on 24 pound bond paper instead of 20 pound copier paper. Using a heavy bond paper will make it easy to tell the original contract from copies. It will also last longer.

 

45. Print on pages using the same paper, and if pages are changed, reprint the document using the same paper. This will avoid an argument that pages were substituted after the contract was signed.

 

46. Sign the contract in blue ink, not black ink. This, too, will make it easier to differentiate the signed original contract from photocopies.

 

47. Initial every page of the contract. Having each party initial each page of the contract will make it less likely that anyone could claim a page was changed after the contract was signed.

 

48. Identify the parties and witnesses who sign by providing blank lines below their signature lines for their printed names and addresses. This will make it easier to find the witnesses if the contract is contested. And remember to include two witnesses for commercial leases.

 

49. Be sure that corporate officers include their titles, the corporation name and the word "as." Failure to do this can result in personal liability of the officer. The proper way to sign in a representative capacity is as follows:
ABC Corporation, a Florida corporation
By:____________________________________
John Jones, as its President

50. Add a notary clause that complies with the notary law. The notary acknowledgement in Appendix B is such a clause.

Concluding Advice

If these 50 tips don‘‘t keep your contracts out of court, try mastering Strunk & White‘‘s Elements of Style*. I hear it‘‘s real handy in appellate work.

 

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译者注：附录部分未译成文，有兴趣的朋友可以自己翻译，有问题，可以来信一起讨论：lawdoor@163.net

Appendix A (Basic Form of Contract)

CONTRACT

AgreEMENT made this _______ day of ____________, 20_____, between ______________________, hereinafter called "_______________", and ______________________, hereinafter called "_____________".
WHEREAS, ________________;
WHEREAS, ________________; and
WHEREAS, ________________;
NOW THEREFORE, in consideration of their mutual promises made herein, and for other good and valuable consideration, receipt of which is hereby acknowledged by each party, the parties, intending to be legally bound, hereby agree as follows:

1. Recitals. The parties agree that the foregoing recitals are true and correct and incorporated herein by this reference.
2. __________________.
___. Miscellaneous. Time is of the essence of this agreement. This agreement is made in the State of Florida and shall be governed by Florida law. This is the entire agreement between the parties and may not be modified or amended except by a written document signed by the party against whom enforcement is sought. This agreement may be signed in more than one counterpart, in which case each counterpart shall constitute an original of this agreement. Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this agreement. Wherever used herein,

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写好合同的五十招(二)

the singular shall include the plural, the plural shall include the singular, and pronouns shall be read as masculine, feminine or neuter as the context requires. The prevailing party in any litigation, arbitration or mediation relating to this agreement shall be entitled to recover its reasonable attorneys fees from the other party for all matters, including but not limited to appeals. Pinellas County, Florida, shall be proper venue for any litigation involving this agreement. This agreement may not be assigned or delegated by either party without the prior written consent of the other party.

 

IN WITNESS WHEREOF, the parties have signed this agreement as of the day and year first above written.

____________________________ ________________________(Seal)

____________________________

Witnesses

____________________________ ________________________(Seal)

____________________________

Witnesses

Appendix B (Basic Form of Notary Acknowledgement)
STATE OF FLORIDA

COUNTY OF ____________

The foregoing instrument was acknowledged before me this _____ day of __________________, 20____, by _________.

Notary Public-State of Florida:

sign_________________________________

print________________________________

Personally Known _____; OR Produced Identification ______

Type of Identification Produced: ____________________________

Affix Seal Below:

Appendix C (Sample Letter of Intent Form)
LETTER OF INTENT FOR POSSIBLE
CONTRACT FOR SALE OF ASSETS

Possible Seller: _____________________________

Possible Buyer: _____________________________

Business: _____________________________

Date: ______________, 20_____

This is a non-binding letter of intent that contains provisions that are being discussed for a possible sale of the Business named above from the possible Seller named above to the possible Buyer named above. This is not a contract. This is not a legally binding agreement. This is merely an outline of possible contract terms for discussion purposes only. This is being signed in order to enable the Possible Buyer to apply for financing of the purchase price. This letter of intent is confidential and shall not be disclosed to anyone other than the parties and their employees, attorneys and accountants and the possible lenders of the Possible Buyer. The terms of the transaction being discussed are attached hereto, but the terms (and the possible sale itself) are not binding unless and until they are set forth in a written contract signed by Possible Seller and Possible Buyer. The word "shall" is used in the attached terms only as an example of how a contract might read, and it does not mean that the attached terms are or ever will be legally binding.

____________________________ ________________________

____________________________

Witnesses

____________________________ ________________________

____________________________

Witnesses

 

Appendix D (Sample Hourly Attorney‘‘s Fee Agreement for Probate)
IN THE CIRCUIT COURT FOR ______________ COUNTY, FLORIDA
PROBATE DIVISION

FILE NUMBER _________

IN RE: ESTATE OF

______________________,

DECEASED.

______________________________________/

ATTORNEY‘‘S HOURLY FEE AgreEMENT

AgreEMENT made between the following persons:

Personal Representative: _____________________________

Attorney: _____________________________

Residuary Beneficiaries: _____________________________

Whereas, Attorney is about to undertake the performance of substantial legal services on behalf of the Personal Representative, for which Attorney shall be paid fees and costs, and the Florida Bar‘‘s Rules of Professional Conduct encourage attorneys and clients to enter into fee agreements at the commencement of representation in order to avoid the possibility of misunderstandings, and the Florida Probate Code requires that attorney fee agreements be signed by the Personal Representative and by the persons bearing the impact of the fees;

Now therefore, in consideration of their mutual promises stated herein, the parties hereby agree that:

1. Hourly Rates. The Personal Representative has retained Attorney to provide legal services to the Personal Representative for administration of the above probate estate in Florida at hourly rates of $_____ for attorney time and $_____ for paralegal time for all matters handled, including but not limited to ordinary services and extraordinary services.

2. Limitation on Fees. Notwithstanding the foregoing, Attorney agrees not to bill fees for ordinary services of Attorney that would exceed the percentage fees provided for in Florida Statutes Section 733.6171.

3. Monthly Bills. Fees shall be billed by Attorney and paid by the Personal Representative out of the assets of the Estate on a monthly basis. Costs incurred for copies, postage, long distance, fax, FedEx, filing fees, and other items shall also be billed and paid at least monthly.

4. No Statutory Percentage Fees. The parties agree that the provisions of this Fee Agreement replace the provisions of the applicable statutes and case law and that Attorney will not charge fees based upon a percentage of the assets or income of the probate estate. (Florida Statutes Section 733.6171 provides that the following is presumed to be reasonable compensation for ordinary services by the attorney for the Personal Representative: $1,500 for the first $40,000 plus $750 for the next $30,000 plus $750 for the next $30,000 plus 3% of the rest of the inventory value and income of the probate estate for ordinary services. The statute also provides that the attorney, personal representative and persons bearing the impact of the compensation may agree to compensation determined in a different manner. The statute also provides that attorneys are entitled to additional compensation for extraordinary services, such as real estate, adversary proceedings, homestead, tax matters, business, etc.)

5. Fee Proceedings. If the matter of fees and costs is submitted to the Court for review or determination at any time, fees and costs shall be billed by and paid to Attorney for such fee proceeding on the same basis as other fees under this Agreement; i.e., billed and paid at least monthly. In addition, attorneys testifying as expert witnesses on the matter of fees shall be entitled to fees at their usual hourly rates, which shall be paid out of the estate.

6. Joint Representation. The parties agree that Attorney represents ________________ in his or her capacity as Personal Representative of the Estate and also in his or her capacity as Successor Trustee of THE ______________ TRUST. The parties understand the potential conflict of interest arising from representation of multiple parties in multiple roles. They understand that if a conflict should ever develop between the multiple clients concerning the Estate or Trust, then Attorney would not be able to represent either of the clients in that conflict. The Personal Representative, Trustee and residuary beneficiaries are encouraged to engage his or her own separate lawyer before signing this agreement if they desire legal advice concerning this Fee Agreement or concerning any other aspect of the probate estate or Trust.

Under penalties of perjury, we declare that we have read the foregoing, and the facts alleged are true, to the best of our knowledge and belief.

 

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