General Principles of Drafting: formula sheet

Key formulas

Definition of drafting

Drafting = clear written expression of legal intention in a form that gives it legal effect

Use this as the opening line of a definition answer, then add objectives.

Core objectives

Clarity + Certainty + Completeness + Legal effect + Precision

A handy list to recall under time pressure. Explain each in one line.

Importance in one line

Good drafting = fewer disputes + enforceable rights + reliable evidence + compliance

Use it to structure an importance answer.

Clarity

One sentence = one idea; one reading = one meaning

Use short sentences, plain words and active voice. Avoid ambiguity.

Precision

Exact parties + exact property/subject + exact amount + exact date

Write amounts in words and figures. Describe property with full identifying details.

Brevity

Keep every word that adds meaning; cut every word that does not

Brevity is not shortness. A short draft with gaps fails the completeness test.

Consistency

Define once, use the same term every time

Do not use 'Purchaser' in one clause and 'Buyer' in another.

Completeness

Parties, subject, consideration, term, rights, duties, default, termination, disputes, execution

Use this as a checklist for any agreement.

Logical arrangement

Title → date → parties → recitals → operative part → schedules → execution

Group related clauses under one heading and number them.

Standard order of a deed

Title → Commencement and date → Parties → Recitals → Operative part → Habendum, covenants and conditions → Schedules → Testimonium → Execution and attestation

Practice may vary slightly (for example, the date can sit in the opening or at the end), but this is the safe sequence to write in an exam.

Recitals versus operative part

Recitals = background (explain). Operative part = words that create or transfer the right (act).

Where the operative part is clear, it prevails over the recitals. Recitals help only if the operative part is ambiguous.

Purpose of the testimonium

Testimonium = clause stating that the parties have signed the deed.

It comes after the operative part and schedules are referred to, and before the signatures.

Types of recitals

Narrative recital (states facts) and introductory recital (explains the object of the deed).

Both can be used in the same deed.

Literal rule

Ordinary, natural meaning of words, unless absurd or contrary to the document

The starting point. Apply it first.

Whole-document (harmonious) rule

Read the document as a whole; no clause is to be treated as meaningless

Clauses are reconciled with each other, not read in isolation.

Ejusdem generis

General words after specific items are limited to the same kind (class)

Example: "cars, buses, trucks and other vehicles" covers road vehicles, not aircraft.

Expressio unius est exclusio alterius

Express mention of one thing excludes others of the same kind

Use with caution; it is an aid, not an always-true rule.

Noscitur a sociis

A word is known by the company it keeps

Meaning of a doubtful word is drawn from the words around it.

Contra proferentem

Ambiguity is resolved against the party who drafted or relies on the clause

Applied only when real ambiguity remains after other rules.

Specific over general

Specific clause prevails over a general clause in case of conflict

Also: handwritten or typed additions generally prevail over printed standard terms.

Shall / may / must

shall = duty; may = discretion; must = strong requirement; shall not = prohibition

Use one word for one idea throughout the document.

Recital vs definition

Recital = background and intent; Definition = fixed meaning of a term

Recitals do not normally create rights; operative clauses do.

Three-stage precaution frame

Before drafting (facts) → While drafting (clarity) → Before execution (formalities)

Use it to organise any answer on precautions so that nothing is missed.

Main error groups

Ambiguity + Omission + Inconsistency + Party/property errors + Formality errors

Name the group first, then give an example and the remedy.

Pre-execution checklist

Parties → Capacity and authority → Terms → Stamp duty → Signatures → Attestation → Registration

Applies to deeds and agreements; tick each item before the parties sign.

Rule for conflict inside a document

Read the document as a whole; harmonise clauses; specific prevails over general where they cannot be reconciled

This is a general rule of construction, not a licence to be careless. Good drafting avoids the conflict altogether.

Quick revision

• Drafting means expressing legal rights, duties and facts in clear, precise and complete written form.
• A good draft says exactly what is intended, leaves little room for dispute and can be enforced.
• Be accurate, clear, complete and consistent. Use the same term for the same thing throughout.
• Prefer plain, simple words and short sentences over long or archaic phrases.
• Know the standard parts: title, date, parties, recitals, operative part, schedules and execution with attestation.
• Define key terms once and use them the same way each time.
• Words are generally read in their ordinary meaning unless the document gives them a special one.
• Check names, addresses, amounts, dates and descriptions of property against the facts given.
• Avoid ambiguity, contradiction, omission and unnecessary repetition.
• Use correct punctuation, because a misplaced comma can change meaning.
• Read the final draft once more as the opposing party would, to find gaps.
• In answers, state the document type, then draft in proper order, and show the facts you used.

Common mistakes

• Writing only a bare definition and stopping. Fix: Always add objectives and importance, and apply them to any facts given.
• Treating drafting and conveyancing as the same thing. Fix: State that drafting is the wider skill, and conveyancing is drafting of documents transferring property interests.
• Listing the principles with no explanation Fix: Give a one-line meaning and a short example for each principle.
• Treating brevity as making the document as short as possible Fix: State that brevity means no needless words, and that completeness must not be lost.
• Treating recitals as operative words. Fix: Keep recitals for background only. Put the words 'sells', 'grants' or 'agrees' in the operative part.
• Putting the property description only in the body and skipping the schedule. Fix: Refer to 'the property described in the Schedule' in the operative part and write the full description in the schedule.
• Treating recitals as binding operative terms Fix: Say that recitals state background and intent and help only if an operative clause is ambiguous. Obligations belong in operative clauses.
• Using shall, may and must interchangeably Fix: Use shall for duty, may for discretion, shall not for prohibition. Keep one word for one idea.
• Only listing error names without examples Fix: Attach a one-line example to each error, such as price in words differing from figures.
• Criticising a clause without redrafting it Fix: Always give corrected wording. Case-based papers reward practical drafting.

Exam tips

• Begin every answer with a definition, then objectives, then importance. Examiners look for this order.
• In case-based questions, name the drafting defect first, then its consequence, then the fix.
• Use your own wording and short bullet points; they make the answer easy to mark.
• Mention the company secretary's practical role to show application, not just theory.
• Do not waste time on long history of drafting. Spend it on application.
• Answer in a fixed pattern: principle, meaning, example, risk if ignored. Examiners reward application over lists.
• When a defective clause is given, name the exact principle it breaks and then redraft it. A redraft is often where the marks are.
• Use numbered points and keep each principle in its own short paragraph so the answer is easy to mark.