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Mark Anderson • 9 years ago

Thanks, Ken, I appreciate the name check!

Drafting and Negotiating Commercial Contracts uses the English convention of referring to
clauses, but doesn't discuss the convention. I agree that it doesn't really matter which
convention you use, as long as you are consistent in the agreement. The English tendency
(does that phrase sound slightly dodgy?) is to refer to clauses (or sometimes sub-clauses)
at several levels, eg 8, 8.1 (or 8, 8(1), depending on your preference) rather than the US
practice of saying Article VIII, but Section 8.1, etc).

My guess is that these conventions (and also the numbering conventions for contracts) are
based on practice in legislation and international treaties. For some reason one refers to
clauses and sub-clauses of UK Parliamentary Bills, but sections and sub-sections of UK
Acts of Parliament. Thus the famously controversial Clause 28 became Section 28 when it
passed into legislation - see http://en.wikipedia.org/wik...

The Vienna Convention on the Law of Treaties uses the system of Articles and Sections.
http://untreaty.un.org/ilc/...

A style guide for European legislation indicates the use of Articles and paragraphs - see
see more

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Ken Adams Mod • 9 years ago

Mark: A couple of other writers on contract drafting who've used the term "tabulation" are
Reed Dickerson (U.S.) and Robert C. Dick (Canada).

For details of the MSCD enumeration scheme, readers will have to consult the book. But for
me, a key test is that I've been able to automate it using the Numbering Assistant.

Ken
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Robert C. Cumbow • 9 years ago

Because the numbered components of a contract often contain more than one paragraph
and always run longer than the length of a "clause," the only thing to call them is sections.
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Jason • 9 years ago

I understand your structure and its usefulness when applied to monstrous agreements such
as large M&A agreements, where section numbers will restart in every article, but I fail to
see the utility of such terms for use in smaller agreements.

If an Article is defined as a group of sections, then this term can be a useful tool even in
smaller agreements. However, I fail to see why subsections are useful.
Referring to Article 1 (which contains Sections 1 to 3) is an efficient reference but referring
to Section 8.1 subsection (a) is less efficient than simply referring to Section 8.1(a).

Out of interest, I took a look at one example you had on your site
http://www.adamsdrafting.co....

For clarification, because I know how much you enjoy that phrase, would you refer to the
first subpart of Section 4 as “Section 4(a)” or as “Section 4 subsection (a)?”
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Ken Adams Mod • 9 years ago

Jason: I said that sections can be grouped into articles. Whether you do so is indeed a
function of how long the contract is.

I'd never use the term article 1 to refer to sections 1 through 3, and I've never seen anyone
else do so. It would be confusing.

My referring to subparts of a section as "subsections" doesn't mean that I propose that you
use that term in a contract. In MSCD 3.73 I recommend that you refer to section 4(c).

And the sample you link to is an old one. Click here to see what the Word version of MSCD
sample 3 (MSCD Enumeration Scheme, "Articles" Version) looks like.

Ken
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Adam Levin • 8 years ago

Since the purpose is merely to cross reference another portion of the agreement, it should
be kept as simple as possible to read. So, "clause 1.2.3" is far easier to read than
"subsection 3 of section 2 of article 1". Would the former also not be more in keeping with
plain language drafting? I think that it would.

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Incidentally, on the subject of jurisdictional differences, in South Africa we generally use the
"clause 1.2.3" method. Occasionally, one might read "subclause 1.2.3".

Also, the word "section" is used in statues; the word "article" is used in international treaties
and in companies' articles of association, which are essentially company constitutions; and
the word "paragraph" is used in pleadings, notices and affidavits.
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Ken Adams Mod • 8 years ago

Adam: I don't think anyone is recommending that one say "subsection 3 of section 2 of
article 1." Seeing as I use the (a) hierarchy for subsections and use the multiple-numeration
system for section numbers (1.1, 1.2, 1.3, etc.) when I group sections into articles, I'd
instead refer to section 1.1(a). Ken
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ADAMS ON CONTRACT DRAFTING

The Ontario Superior Court of Justice Some Not-Entirely-Positive Thoughts on

Takes Liberties with a Termination “Further Assurances”
• •

A
— It presumably got hung up; I’ll A
— Adding promptly is legit. And
check later! your version might prompt me to change my
version to "the transactions provided for in …

“Variation”? No Thanks Advice on Contracts: 1916 Compared with

• 2018
— That's analogous to the •
A
distinction I refer to in the final paragraph of A
— As I note in another comment,
my post. I think change order would be the … the "idiot" references are to those in the
hypothetical scenario, not esteemed readers

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