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CS Professional · Drafting, Pleadings and Appearances · General Principles of Drafting

In a services agreement, the draft opens with the parties' names, followed by recitals, then a definitions clause, then operative clauses on scope, fees and termination, and finally boilerplate and signatures. Anil asks why the definitions clause is placed before the operative clauses. Which is the best reason?

The definitions clause precedes the operative clauses so that each defined term has one consistent meaning wherever it is later used. This avoids ambiguity and repetition. It is a drafting convention for clarity, not a stamp duty or enforceability requirement.

  1. ADefined terms are used throughout the operative clauses, so defining them first ensures consistent meaningCorrect
  2. BDefinitions are legally required to precede recitals
  3. CDefinitions reduce the stamp duty payable
  4. DOperative clauses cannot be enforced without a prior schedule

Explanation

Definitions placed early let each term carry one fixed meaning wherever it appears in the operative clauses, avoiding ambiguity. There is no rule that fixes their order relative to recitals for stamp duty or enforceability purposes.

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