Legal drafting is the most important instrument of legal communication. A professional need to have a very good hand at drafting as the skill to draft well is the skill to think and communicate well. Drafting is the collection and placing of all aspects of the matter in a logical manner and a lucid style so that the contents of the documents can be understood without any ambiguity. It becomes essential for a draftsman to draft all legal documents with precision, to clearly depict all essential facts as well as engage a layman to its content.
General Principles of drafting:
- Sound knowledge of laws: The most important duty of a draftsman is to have a clear conception of what the intention of the parties are and then to examine how the same can be carried out in the light of the applicable laws. Therefore, he must have a sound knowledge of law which will also enable him to ask suitable questions from the parties involved.
- Details of Parties: This is but obvious principle of the drafting. A draftsman must get to know the names, description, address of the parties and should know the matters to be covered.
- Contractual Capacity: A good draftsman must know whether the parties to a document are free to contract in the capacity in which they intend to contract. For Instance, A minor cannot enter into a contract except through his legal guardian.
- Lay-out: It is always desirable to make an outline of the document before taking up with the drafting. It is like one must plan what should be the contents of the document first and then get the laws, facts & Information arranged are per the plan.
- Schedules and Annexures: Schedules and Annexures wherever necessary must be provided alongwith the document and proper reference of the same should be made in the document itself.
- Unnecessary words: Incorporation of unnecessary words and matters should be avoided to make the document precise, otherwise it renders the document unintelligible and lengthy unnecessarily. Also, positive statements should be used than negative ones, wherever possible.
- In case of Companies: It should be assessed by the draftsman that the object clause of the memorandum of association of the Company permits it to execute such document. Otherwise the document is of no use. Also, it should be checked that the person acting on behalf of the Company is duly authorised by the Board of Directors by passing a Board resolution.
Some Do’s and Don’ts of Drafting:
- Use familiar words rather than farfetched words.
- Use short words rather than a long word.
- Use Active voice instead of passive voice.
- No unnecessary repetition of words.
- Write shorter sentences.
- Express the ideas in fewer words.
- Choose the right word.
- Know exactly the meaning of the words and sentences you are writing, and
- Put yourself in the place of reader, read the document from his point of view and satisfy yourself regarding the content, interpretation and the sense it carries.
DRAFTING OF DEEDS
Let us focus now on drafting of deeds, since in our day to day lives, we come across drafting of various deeds, such as partnership Deed, LLP deed, gift deed, trust deed, Share Purchase Deed, Lease Deed and so on.
A deed is a document creating rights and liabilities on the part of the parties, signed by the parties involved and attested by the witnesses.
How to Prepare of deed/Parts of a deed:
How to Prepare of deed -Parts of a deed
Following are the three parts of a deed:
1. Non-Operative Part:
- Description/Title of the Deed: The title of the deed should be indicative of the True contents of the deed. For ex: Sale Deed, lease Deed etc.
- Place and Date of the deed: Generally, the date and place are stated in the following manner: “This Deed of Sale is made at New Delhi on this First Day of September, Two Thousand and Eighteen between….”
- Description of Parties: The description of the parties to deed should be given in such a manner that the parties can be identified easily. In case of artificial person, the law under which it has incorporated and registration number, if any alongwith address should also be provided.
- Recitals: This Part contains the motive of the parties for which they have agreed to enter into the deed. It begins with familiar words, such as “Whereas the parties to the deed are desirous of …………”
2. Operative Part:
- Testatum: This part clearly sets out the intention and transaction between the parties including consideration involved.
- Habendum: This part defines the interest conveyed and to set out the limitations on the property involved. For ex: Property involved in the deed is encumbered/unencumbered.
- Exceptions and Reservations: This part contains the exceptions and reservations according to which the subject matter of the deed should be dealt with. For example: in lease deed, if the lessor wants to retain the right to use parking area of the property leased, then the same should be expressed clearly.
- Forfeiture and Renewal: This part states the conditions which if not adhered to would cause the deed to stand terminated (alongwith the consequences) and the conditions which should be followed if the parties want to renew the deed. For ex: In sale deed, if seller wants the buyer to pay the consideration in 4 installments, failure of which will cause the deed to terminate, then the same should be mentioned precisely in the deed.
3. Formal Part:
- Testimonium: This part sets forth the fact that the parties have signed the deed. It usually begins with the word: “IN WITNESS WHEREOF, the aforesaid parties to the deed, on the above-mentioned date and place have set forth their hands in the presence of witnesses”.
- Signature of the Parties: Immediately after the testimonium, the parties put their signatures in the presence of witnesses on the left side of the signing page.
- Attestation by witnesses: After signature of the parties, the witnesses put their signatures mentioning, their name, father’s name, address and occupation on the right of the signing page in line with the signature of parties and in the presence of executants.
- Parcel/Schedule of Property OR Schedule/Annexures: If subject matter of the deed is immovable property, then the description of the property indicating its surroundings should be given mandatorily in parcel/schedule to the deed.
However, in case of movable property, if the nature of the deed demands, then the schedule/annexure can be provided as per the requirement of the properties. For example: If the parties want the particular rights related to the subject matter of the deed to be mentioned separately in the annexure, then the draftsman should proceed accordingly.
(The author of this article is a Practicing Company Secretary located at New Delhi and can be reached at [email protected])
Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. No part of this document should be distributed or copied without express written permission of the author.