Legal Writing

What to Call the Components of the Body of the Contract

By Ken Adams

Yesterday I gave another of my Osgoode Professional Development seminars in Toronto, to a sellout crowd of eighty. During a break I discussed with one of the participants what to call the components of the body of the contract. In a follow-up email, here’s what she had to say on the subject:

As discussed, in England the practise as I know it is to refer to “clauses” and “paragraphs” and “sub-paragraphs” of a contract. “Sections” and “articles” are generally used only when referencing statutes and legislation in general.

In chapter 3 of MSCD, I refer to sections, which can be grouped into articles and subdivided into subsections. Because that terminology is standard in the U.S., it didn’t cross my mind to consider alternative labels. I also discuss how any given sentence?potentially a very lengthy one?in a section or subsection can contain a set of enumerated clauses, which can be integrated or tabulated. And any given enumerated clause can itself contain a further set of enumerated clauses, although if in a given sentence you have more than two levels of enumerated clauses, the matryoshka-doll effect would usually make it harder to read rather than easier.

To check out English terminology, I had a look at my one book on drafting that was written by an English lawyer. (It’s outnumbered by my Canadian and Australian titles.) I’m not crazy about this book, so I won’t mention its name. (Yes, I know I should check out Mark Anderson’s book!)

According to this unnamed work, the basic unit is the “clause,” which can be grouped into “parts” or “sections” and can be divided into “sub-clauses.” That’s analogous to my articles-sections-subsections structure. I prefer section, and not only because it’s entrenched in the U.S.: clause-as-section clashes a bit with the linguistics meaning of clause.

But it then goes on to say that by means of “paragraphing,” sub-clauses can be divided into “paragraphs” and “subparagraphs”?what I refer to collectively as tabulated enumerated clauses. ”Paragraphing” is a standard term, but I prefer the other term for this, “tabulation”: in general usage it’s accepted that a paragraph is made up of one or more entire sentences, whereas a tabulated enumerated clause is only part of a sentence. For the same reason, I don’t refer to paragraphs and sub-paragraphs.

My other quibble is that in two respects it’s inaccurate to refer to tabulating sub-clauses. First, you tabulate a single sentence, and a sub-clause may well consist of more than a single sentence. Second, the sentence being tabulated could be in either a clause or sub-clause (i.e., section or subsection).

Ultimately, I’m not hung up on what labels you use for articles, sections, and subsections. I’m more concerned about distinguishing between, on the one hand, sections, subsections, and articles, which are concerned with how one groups sentences, and, on the other hand, tabulated enumerated clauses, which are concerned with how one subdivides individual sentences.

Full post as published by AdamsDrafting on January 21, 2010 (boomark / email).