I hope it’s been a long time since anyone used the old fashioned, “party-of-the-first-part; party-of-the-second-part” drafting style. That was a product of the days when lawyers were paid, not by the hour (or even six minute increments); but by the word – and the more words, the better!
A move towards using plain English in the 1970s began to change all that. A fashion for using conversational terms like, “we”, “you”, “us”, “our” and “your” seemed to develop at about the same time as disco music, flares, and cork soled shoes. But unlike clothing fashions of the 1970s, it has not left us.
I don’t want to be a grammar snob; but what I am wondering is whether this conversational approach to drafting agreements is always helpful and whether it reflects what we really want from the agreements that we make.
At a technical level it is sometimes difficult to know who is talking and who is involved. Take the following example from a contract between two parties for the supply of commercial services:
We will deal fairly and act with integrity.
To whom does the “we” refer? Is it both parties or just the supplier, or whoever is speaking in the first person? Perhaps, “the parties” really would be better here, if the obligation is intended to be reciprocal.
You will probably be able to find lots of examples like that – probably harmless enough for the most part; though quite capable of supporting Supreme Court proceedings for interpretation of the document.
But it is a philosophical aspect of the conversational drafting style that is really prompting me to write this note and I want to state it in the form of a question:
What does the first/second person (we/you) style imply about where power resides in the relationship; and is it important?
I think it might be, and probably a neuro-linguist would be in a better position to comment on this, but it seems to me that the we/you drafting style betrays a sort of egoism that is not always conducive to the recording of co-operative or collaborative relationships. It may tend to dehumanise or objectify the parties, suppress empathy and subordinate or dis-empower one party into a position of passivity that is unhealthy and unproductive.
In a we/you document, someone is always talking; and someone is always listening, passively. Someone is acting and someone is acted upon. One person is boss and the other person is … well you’d hope the other person is not you!
As I see it, this is going to become important as we try to charter the new types of work and commercial arrangements that are strongly focussed on constructing productive and co-operative relationships.
So I want to come out in support of using empowering language and giving the parties a name. After all, it is an important part of who the parties are and how they perceive themselves.
Acknowledging your customer’s or work seeker’s name and using it might just be a step towards building more empathetic and constructive business and work relationships.
Andrew C. Woood