Having cut his chin with an electric razor that has opti-grip and vibrates, Corporate Blawg now buys disposable cheapo blades. Having broken his wife's blender, Corporate Blawg now whisks with a fork (in the garage where he sleeps). These are two examples of Corporate Blawg applying Occam's razor to help him get by in this dangerous and breakable non-padded world.
Occam's razor is the theory attributed to William of Occam for his making up of a nifty maxim in latin. The theory is actually found further back to Thomas Acquinus and even Mr. "Walking About" himself - Aristotle. The maxim is:
"Plurality ought never be posed without necessity." (William's version)
Or:
"Entities should not be multiplied beyond necessity." (Rip off version)
Or:
"One should not increase, beyond what is necessary, the number of entities required to explain anything." (Verbose version)
Of any philosophical theory, this one has spawned the most variations that all say the same thing. Of such an ironic batch, Corporate Blawg's personal favourite is KISS: "Keep it simple stupid".
Whilst attacking the blender with a screwdriver and woodglue, Corporate Blawg asked himself how then, could this maxim also apply to contract drafting? Let's now discuss the traps and pitfalls, gold-dust and glory of Occam's razor in commercial contracts.
Clearly the principle of parsimony adds great value to a well crafted contract. But how should parsimony be applied? Firstly, repetition risks two interpretations, and the potential lack of legal certainty makes repetition a grevious sin.
Secondly, a contract which is heavy with excessive drafting is (a) costly to write, (b) difficult to negotiate, (c) will increase the risk of unnecessary clauses being unreasonable (and the whole contract being void for lack of legal certainty), and (d) boring.
The application of the the razor begins at the most basic level of contact. Ask yourself, what do the parties intend? A contract should reflect only genuine intentions and no more. A lawyer should never forget that his job is to deal with the legal issues, because clients should deal with the commercial points.
Besides damnation from repetition, Corporate Blawg considers that key areas where Occam's razor should slice through poor drafting is that:
- defined terms must not be circular,
- core obligations must not be described in so much detail as to be unwieldly or unduly restrictive, and
- boilerplate clauses must be used sparingly and appropriately.
Albert Einstein's variation adds a wonderful caveat to the above:
"Everything should be made as simple as possible, but no simpler".
And on that note, Corporate Blawg is off to the shops to buy a new blender.
Comments