This article has been written by Prince Ilango pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.
This article has been edited and published by Shashwat Kaushik.
Table of Contents
Introduction
Drafting a legal document is a skill that can be achieved only through a lot of practice. Drafting itself means the process of writing a legal document either by pen and paper or by using a computer, laptop or other electronic devices, but the goal of a draft should focus on being accurate, concise and to the point when it comes to legal principles and the facts that are related or relevant to the particular situation or issue for which the draft is being prepared. Drafting such documents requires legal knowledge and the person who drafts them should be aware of the structure of the draft because there are several factors that have to be considered while preparing a draft to avoid mistakes or to make a proper draft. Formation of an outline, arrangement of facts, style and language, and words used in the draft—all of this plays a vital role in making a perfect draft. Mostly, these drafts are prepared by advocates and people who have sound knowledge in the legal field. Several drafts are prepared before making the final draft; this is to help the draft avoid any possible mistakes that can occur and also to make the draft short and accurate, which meets all its needs. Drafting a legal document includes the drafting of contracts, pleadings, opinions, agreement and similar legal instruments.
What is a draft
A draft, in general, means a piece of text or a drawing in its original state, often containing the main ideas and intentions but not developed or completed. In other words, it is a piece of writing that has to be improved, not the final version. A draft can also be explained as an outline in the form of rough notes of something to be done or made that will be perfected later. For example writing of documents, a letter, speech plan, design drawing, etc.
Drafts can take many forms, from handwritten notes to typed manuscripts. They may be written in a variety of styles, from formal to informal. The purpose of a draft is to get the ideas down on paper so that they can be organised and developed into a coherent piece of writing.
There are many benefits to writing a draft. First, it allows the author to get their thoughts and ideas down on paper in a relatively unstructured way. This can be helpful for brainstorming and coming up with new ideas. Second, a draft can help the author see the overall structure of their writing and identify any areas that need to be developed or revised. Third, a draft can be used to get feedback from others, such as teachers, editors, or peers. This feedback can be used to improve the quality of the writing.
Of course, there are also some challenges associated with writing a draft. First, it can be difficult to get started on a draft, especially if the author is feeling overwhelmed by the task. Second, it can be difficult to stay focused and motivated while writing a draft. Third, it can be difficult to know when a draft is finished and ready to be revised.
Despite the challenges, writing a draft is an essential step in the writing process. It is the foundation on which the final piece of writing will be built. By taking the time to write a draft, authors can improve the quality of their writing and produce a more polished and professional piece of work.
What is drafting
The term drafting means preparing a preliminary version of the document. Legal drafting can be defined as the collection of a law, its components, facts and other related stuff in legal language on a legal document. Laws, facts and language are the three main components of legal drafting. Legal drafting is preparation of legal documents like contracts, notices, etc. To understand drafting better, let’s look into the steps involved in drafting, which have been explained below.
Steps involved in drafting
There are basically three main steps involved in drafting a legal document, which are as follows:
First draft
It contains every single detail that the person who is drafting thinks is essential to that document,which ultimately makes the first draft a longer one compared to the second and third drafts. There is a saying about the first draft, “the first draft contains everything you wanted to say but the final draft only contains everything you needed to say.”
Second draft
In this phase, the editing part begins. The second draft plays an important role in making the final draft, anything that has to be removed or added is done in this phase of the draft.
Final draft
The final draft aims towards accuracy and effectiveness in conveying and convincing the client, court, or any relevant parties.
Throughout this process, every single word, legal term, act, section, and other related matter that has to be in that particular draft for the purpose of which the draft is being made has to be accurate and should be able to fulfil the requirements of the draft. The draft should equally focus on making it more understandable to the firm, company, person or any other individual who has a connection with the draft that is being made.
Terminology involved in drafts
Draftsman: Is the person who makes or draws drafts/documents like leases, mortgage deeds, gift deeds, wills, and other documents.
Dragoman: The person who interprets pleadings and other writings; a professional interpreter.
Various laws that deal with drafting under the Indian Constitution are:
- The Constitution of India
- The Companies Act of 1956
- The Companies Act of 2013
- The Indian Evidence Act of 1872
- The Indian Contracts Act of 1872
- The Indian Stamps Act of 1889
- The Registration Act of 1908
- The Transfer of Property Act of 1882
Laws that deal with contract drafting
These laws aim to ensure that contracts are fair, transparent, and legally binding. Here are some of the key laws that deal with contract drafting in India:
- Indian Contract Act, 1872: This is the primary legislation governing the formation, interpretation, and enforcement of contracts in India. It sets out the essential elements of a valid contract, including offer, acceptance, consideration, capacity, and legality of purpose.
- Sale of Goods Act, 1930: This law deals specifically with contracts for the sale of goods. It provides detailed provisions on the rights and obligations of both buyers and sellers, including the transfer of ownership, payment terms, delivery, and remedies for breach of contract.
- Specific Relief Act, 1963: This law provides remedies for breach of contract, such as specific performance, injunctions, and damages. It also sets out the conditions under which these remedies may be granted.
- Arbitration and Conciliation Act, 1996: This law provides a framework for the resolution of disputes through arbitration and conciliation. It sets out the procedures for appointing arbitrators, conducting arbitration proceedings, and enforcing arbitration awards.
- Information Technology Act, 2000: This law governs electronic contracts and transactions. It provides legal recognition for electronic signatures and digital documents and sets out the conditions for the formation and validity of electronic contracts.
- Consumer Protection Act, 2019: This law aims to protect consumers from unfair trade practices and defective goods and services. It provides for the establishment of consumer courts and tribunals to adjudicate consumer disputes.
These laws, among others, provide a comprehensive legal framework for the drafting and enforcement of contracts in India. By understanding and complying with these laws, businesses and individuals can ensure that their contracts are legally valid and enforceable.
Principles of drafting
There are mainly four fundamental principles that govern drafting; they are listed below:
A satisfactory outline
A draft is considered the frame of any document, or, in other words, it is considered the skeleton of the documents, so a completed draft should be easy to understand and should also be elaborate with all the relevant details involved in it , because if a clause or some important information about the contract or agreement goes missing in the draft, then it is not going to be a final draft and the person who needed that draft is not going to be happy with the work of the draftsman or any person who drafted that particular document or contract. So it’s always important to have a satisfactory outline of what should be done and an idea of how the draft should look when it’s complete.
Careful arrangement of facts
The facts should be arranged in a good manner. By good manner, it means that the facts should be arranged step by step according to the importance of the fact, which will make it easier to understand and know what and where the issue is or it might be helpful for the companies to understand the contracts better in the first instance, which will save time and avoid problems in the future related to the contract or agreement.
Clear style and language
Grammar mistakes, spelling mistakes, mistakes in acts and sections, mistakes in legal maxims,poor punctuation, mistakes in legal terms and other such mistakes should be avoided while making a draft. On the whole, the draft should be faultless without any mistakes. A simple style should be used so that there will be no problem in transferring the ideas of a draft to the person who reads the draft.
Physical characteristics
The draft should be typed on standard quality paper (20 by 30 cm) with margins of 4 cm on the top left side and 2.5 to 4 cm on the right side and bottom.
Numbering of each page, Numbering of preliminaries in Roman Numbers (i , ii , iii) and Main Text in Arabic (1, 2, 3, etc.) The number of pages should appear in the upper right corner, 2.5 cm from the top and side. The body of the document is to be double spaced normally. Each paragraph should be indented with five spaces and every paragraph should be numbered. All sheets are to be strongly tied together.
Rules for drafting
Rules that have to be followed while drafting are:
- No facts should be avoided; this is an important rule that should be followed by every person who drafts a document, agreement, deed, or any such document.
- Legal terms have to be used in appropriate places.
- Negative statements should be avoided.
- A prepared draft should be read several times to check for any omitted facts or mistakes.
- A draft should be divided into multiple paragraphs according to the needs of the contract or agreement.
- Choice of words which are used should be polite.
- All the physical characteristics mentioned above should be followed strictly.
Conclusion
To conclude, a draft should be accurate and clear. A person with proper knowledge about the subject matter should be able to understand the draft completely. The skill of drafting is a vital part of a successful career in the legal field. Lots of practice in drafting and asking for suggestions from a senior for any improvements in the way of drafting will be helpful for any person who wants to acquire the skill of drafting. Every fact should be given the utmost care and should be included to avoid any legal problems in the near future regarding the drafted document. A draft should meet all its needs and should also be understandable by a layman, or a client, because a contract or agreement is not valid without the signature of the parties involved. A draft can also include a confidentiality clause for maintaining the trade secret or such confidential information for the benefit of both parties involved in a contract or agreement. It is also important to make sure that the agreement or contract does not become void (invalid). One should avoid such mistakes, which will make the agreement or contract void. Any agreement or contract that is illegal under the law becomes void. So, while drafting, one should make sure that no illegal matters are involved in that particular agreement, contract, deed, or any such documents. All the above said rules and formats should be used to make a proper draft and as i mentioned earlier, lots and lots of practice is the key to mastering the skill of drafting. There are several websites and books on how to improve your drafting skills. One can utilise these sources to improve themselves in drafting.
References
- https://blog.ipleaders.in/drafting-principles-rules-dos-donts-law-student/
- https://www.lawaudience.com/the-concept-of-drafting-its-general-principles/
- https://lawbhoomi.com/general-principles-of-drafting/
- https://www.lexagle.com/blog-en-sg/the-basic-principles-of-drafting-a-contract
