Drafting principles and quality control - Ensuring accuracy,...

Learning Outcomes

By the end of this article, you should be able to identify and apply the core principles of accurate contract drafting, explain the requirements for certainty and enforceability, and describe key quality control measures for legal documents in practice. You will understand how to ensure agreement terms are clear and unambiguous so as to reduce risk and achieve predictable, enforceable results for clients in line with SQE2 assessment requirements.

SQE2 Syllabus

For SQE2, you are required to understand the principles of high-quality legal drafting from a practical standpoint. This article will support your revision of:

• the requirements for accurate, clear, certain, and enforceable legal drafting in practice
• identification and correction of ambiguity, error, and legal defects in draft documents
• consequences of poor drafting (e.g., unenforceability, disputes, litigation)
• best practices in contract and legal document review, including quality control procedures

You should use this article to strengthen your ability to spot and address issues with certainty, clarity, and enforceability in all forms of legal drafting.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Why is certainty of terms essential for the enforceability of a contract under English law?

2. Which of the following may lead a contract or clause to be found unenforceable?
   1. vagueness as to key obligations
   2. failure to record parties accurately
   3. ambiguous payment terms
   4. all of the above

3. What type of drafting error is most likely to cause a "void for uncertainty" outcome?

4. State two practical steps a solicitor should take before finalising a contract to minimise drafting error.

Introduction

Drafting legal documents for clients—whether contracts, settlements, board minutes, or advice—requires more than legal knowledge. It requires rigorous attention to detail, clarity of language, and processes that safeguard accuracy and enforceability. Poor drafting can ruin deals, lead to expensive disputes, or cause a contract to be declared void. This article sets out the essential principles of drafting and controlling quality to produce documents that deliver certainty and enforceability for clients.

The Principles of Effective Legal Drafting

The test for good legal drafting is whether the agreement will be interpreted and enforced by courts as the parties intend. Three objectives underpin this goal: (1) accuracy, (2) certainty, and (3) enforceability.

Accuracy

Correct information and legal terms are the basis of enforceable drafting. Errors in parties' names, dates, obligations, or technical specifications can create ambiguity or risk invalidity.

Key Term: accuracy
The requirement that every factual and legal element of a legal document matches the true intentions, instructions, and circumstances, with no mistakes or omissions.

Certainty

A contract (or any legal document) must be sufficiently clear so that a court can determine exactly what has been agreed. Vague or "agreements to agree" are generally unenforceable.

Key Term: certainty
The condition that the terms and obligations in a legal document are expressed precisely enough that a reasonable third party (such as a court) can determine the parties' intentions and enforce the agreement.

Key Term: enforceability
The property of a contract, clause, or other legal instrument that makes it legally binding and capable of being upheld by a court.

Clear Legal Language

Language should be free from ambiguity, jargon (unless explained), or any words with multiple possible meanings. The same term must carry the same meaning throughout the document.

Key Term: ambiguity
The existence of two or more possible interpretations of a word, phrase, or provision in a legal document, leading to uncertainty about parties' rights or obligations.

Consistency and Structure

Use the same terms consistently for the same meaning. Definitions should be listed and accurately used. The structure of the document must be logical, sequential, and clearly divided into numbered clauses and headings.

Enforceability

Only valid obligations, clearly described, can be enforced. For example, if a material term is missing or insufficiently certain, the contract may be void for uncertainty. Statutory requirements for particular contracts (e.g., leases, guarantees, land transactions) must be met.

Quality Control in Drafting

Even experienced lawyers make drafting errors. Quality control is therefore essential, especially when working under time pressure.

Best Practice Quality Control Steps

1. Initial Proofreading: Always review for typographical, factual, and formatting errors before sending out.
2. Substantive Review: Check that each obligation, deadline, and defined term is correctly used and that clauses align with clients' instructions.
3. Legal Validation: Ensure the document meets statutory and common law requirements and is not contrary to public policy.
4. Peer or Supervising Review: Where possible, have a senior lawyer or another colleague check the draft.
5. Client Confirmation: Before finalising, confirm with clients that facts and risk allocations are as intended.
6. Version Management: Keep track of document versions to prevent use of outdated or incorrect drafts.

Common Causes of Drafting Defects

• Vagueness: Use of unclear or general wording.
• Omissions: Leaving out a material term (e.g., price, parties).
• Inconsistency: Using different words for the same meaning or terms that contradict each other.
• Ambiguity: Wording that admits two or more meanings.
• Technical Errors: Misdescribing legal status or entities, incorrect clause referencing, or failing to comply with statutory formalities.

Typical Legal Risks From Poor Drafting

Worked Example 1.1

The contract states: "Supplier shall deliver goods as soon as possible." Supplier fails to deliver within two months; Buyer claims breach.

Answer:
The term "as soon as possible" is vague. A court may refuse to enforce any delivery deadline—risking buyer's claim failing. This is a classic void-for-uncertainty scenario, as "as soon as possible" gives no clear standard.

Worked Example 1.2

A settlement agreement describes "John Smith, director of ABC Ltd," as a party. In fact, John Smith is not a director of ABC Ltd, and the party intended to be ABC Ltd itself. The wrong John Smith signs.

Answer:
The error in describing the parties can cast doubt on who is bound. If this is not corrected, the agreement may not be enforceable against the correct company, creating serious legal risk.

Managing Ambiguity and Risk

Ambiguous drafting can lead to disputes, costs, and in some cases, a court declining to enforce the agreement. Later negotiated "fixes" may be expensive or unachievable if relations sour.

Key Term: void for uncertainty
A contract or provision that is so unclear or incomplete that a court cannot enforce it.

The Role of Precedents and Templates

Precedent documents and firm templates are an essential starting point—but must always be reviewed and tailored to the client's facts and legal needs. Never copy blindly—legal context, up-to-date law, and party details must match the new transaction.

Revision Tip

Before finalising a client document, pause and proofread every term for clarity, defined meaning, and practical workability. Use checklists and consider a second pair of eyes.

Exam Warning

For SQE2 style drafting or contract-drafting stations, you must proactively identify and correct ambiguity, error, missing parties, or legally defective clauses. Do not assume templates are legally valid without scrutiny.

Summary Table: Key Drafting Risks and Outcomes

Key Point Checklist

This article has covered the following key knowledge points:

• The core objectives in drafting legal documents are accuracy, certainty, and enforceability.
• Certainty is essential for court enforcement; vague or ambiguous clauses risk being void for uncertainty.
• Clear language, consistent use of terms, and precise party descriptions are critical.
• Quality control steps (proofreading, peer review, legal checks) reduce errors and litigation risk.
• Use precedents carefully, always tailoring and checking them for the current transaction.
• Failure to follow these principles may lead to invalid contracts, disputes, and professional negligence risk.

Key Terms and Concepts

• accuracy
• certainty
• enforceability
• ambiguity
• void for uncertainty