GENERAL PRINCIPLES OF DRAFTING AND RELEVANT SUBSTANTIVE RULES
SUMMARY
Drafting – Meaning
Drafting is the process of combining facts and law into written form to create legal documents such as
contracts, deeds, wills, and agreements. This process crystallises legal rights, duties, privileges, or
functions through linguistic expression and mental reasoning. To produce papers that are
understandable, straightforward, and legally sound, legal drafting necessitates a grasp of language,
facts, and law.
Meaning of Conveyancing
The act of transferring property whether immovable or movable from one individual to another via
formal documentation is known as conveyancing. Deeds of transfer such sales, leases, gifts, and
exchanges are included. Conveyance in India is specified by a number of laws, including the Transfer
of Property Act of 1882 and the Indian Stamp Act of 1899.
Comparing Drafting and Conveyancing
While drafting is a more general phrase that encompasses the compilation of various types of legal
papers, such as contracts, deeds, and other commercial agreements, conveyancing refers particularly
to the preparation of documents linked to the transfer of property. While drafting can apply to any
legal form in a commercial context, conveyancing is primarily concerned with the paperwork
associated with real estate transactions.
To guarantee that accurate, legally sound documents are interpreted, and executed, corporate leaders
must have a solid understanding of drafting and conveyancing. While conveyancing focusses on the
transfer of property, drafting focuses on the creation of all kinds of legal papers. Executives who have
the skill can easily negotiate legal complexity and interact with stakeholders and legal specialists.
GENERAL PRINCIPLES OF DRAFTING ALL SORTS OF DEEDS AND CONVEYANCING
AND OTHER WRITINGS
Legal document drafting is an art that demands accuracy and a thorough comprehension of the law and
the facts. Gathering information about the parties and any pertinent data that need to be included is the
first step for the draftsman. While making sure that the relevant regulations are followed, it is crucial to
convey the parties objective precisely. The draftsman must make sure that no significant information is
left out and that the document's objective is maintained. In situations involving businesses, for example,
it is crucial to verify that the business is authorised to do the transaction.
The document must use clear, accurate language that and it must follow legal and customary norms.
The document should be logically organised and free of negative comments. To ensure that the right
phrase is used, the draftsman must be knowledgeable on legal interpretation guidelines and case law.
Schedules, enclosures, or annexures, if required, should also be included with the document.
1) Fowlers’ five rules of drafting
a) Direct and Simple Language: Use familiar, concrete, single, and short words to make
the text clear.
b) Active Voice: Prefer active voice for clarity and brevity.
c) Concrete over Abstract: Use concrete words for precision.
d) Single Word Over Circumlocution: Avoid redundant phrases.
e) Saxon over Roman Words: Use words familiar to the average reader.
2) Structuring and Planning in Drafting
Sketching the Draft: As per Mr. Davidson’s advice, outline the document’s structure and
objectives before drafting to ensure clarity and coherence.
Skeleton Draft: Develop a skeleton draft to note key points, then elaborate and refine for
completeness.
Self-Appraisal: Review the draft against facts, applicable law, logical flow, language
simplicity, and Fowler’s rules to ensure clarity.
3) Special attention to be given to certain documents
Legal Compliance: For documents involving contractual obligations or property
transfers, ensure compliance with relevant laws and secure necessary permissions. It
must be ensured that contractual obligations are not contrary to the law in the document.
Verification of Title: For property-related documents, confirm the transferor’s title
through legal investigation.
4) Expert review
If the document is a template for repeated use, consider expert review for legal accuracy
and relevance.
Do’s and Don’ts
Clear and Simple wording are essential for effective drafting. Key "Do's" include avoiding
complex or repetitive language, utilising single words or simple verbs, simplifying word
groups, and favouring active voice and shorter phrases. For clarity, writers should check their
work from the reader's point of view and make sure every word and sentence has a clear
meaning.
The "Don'ts" warn against using consecutive negatives and confusing homophones (such as
"employer" vs. "employee"). The proposal should utilise exact wording (such as "not
exceeding" rather than "more than") and steer clear of ambiguous phrases. Common typos and
tense mistakes should be avoided, and it's crucial to pay attention to words like "and" vs. "or."
Drafters should consult legal dictionaries for specialised legal terminology and ordinary
dictionaries for generic terms when selecting words. Words should express clear, up-to-date
meanings that are pertinent to the context, and the document's purpose should be obvious. For
accurate word choice and legal comprehension, it is advised to consult reputable legal sources
and specialists.
Use of appropriate words and expressions
Selecting exact wording is essential when writing legal documents because words can have
different meanings depending on precedent or context. For instance, the phrase "instrument"
normally refers to documents that establish, transfer, and document rights and liabilities, such
as wills, awards, and legal documents; however, it typically does not include Acts of Parliament
unless they are expressly designated as such. Spatial phrases like adjoining, adjacent, and
contiguous are used in property papers to convey proximity with subtle distinctions; depending
on the context, adjacent may represent separation by a particular distance, while adjoining
denotes closeness but boundaries may not touch directly. Other location-indicating phrases
include at, near, on, and in the vicinity; "vicinity" suggests proximity without direct touch, while
"more or less" and "estimated" allow for small errors in property size without nullifying the
contract.
Although context may cause them to be interchanged if it makes the meaning clear, and or
normally serve as conjunctive and disjunctive phrases. Similarly, if certain encumbrances are
mentioned, the word "subject to" qualifies the rights transferred, perhaps suggesting that only
the equity of redemption is transferred. Despite being legally different, phrases like exception
and reserve are sometimes used interchangeably in practice, with their meaning depending on
the general purpose of the document. until accompanied by Easterly or Westerly, which often
indicate approximate directions until "due" is indicated, directional phrases such as North and
South typically imply particular compass points. Effective legal drafting requires an
understanding of these subtleties and the context in which they are used in order to provide
clarity and reduce misinterpretation.
INTERPRETATION OF DEEDS AND DOCUMENTS
To create precise and understandable legal documents, deeds and agreements are read in
accordance with a number of guidelines. Since there is no specific law governing conveyancing
in India, it is essential to comprehend interpretation norms like those outlined in Maxwell's
book. Informal agreements are analysed using the reasonable expectation principle, which
considers how one party might reasonably interpret the other's statements. Only when the
contract itself is the primary piece of evidence can additional evidence clear up uncertainty in
formal, written agreements. The document's overarching goal serves as a guide for
interpretation, with clear and unambiguous wording superseding any inferred intent. By
considering the present social context, individual circumstances, or environment, it is possible
to clarify unclear words.
Prioritising final terms above preliminary ones, ignoring phrases that contradict with primary
commitments, and giving words their natural meanings unless a different interpretation is
conveyed are important guidelines for formal agreements. Unless the restrictions are incredibly
difficult or ridiculous, hardship to a party is usually not taken into consideration. Every phrase
in contracts, particularly those pertaining to commerce, should be given weight and interpreted
with common sense rather than strict conformity to technical regulations. Unless the context
requires differently, it is suggested to interpret related writings consistently.
Certain principles are very particular. For example, handwritten modifications take precedence
over printed material, and deleted words in standard forms are only taken into consideration for
resolving ambiguities. A deed may be voidable only prospectively if modifications are made
after it has been executed without the parties' consent. Unless they are inseparable from the
transaction, unbinding clauses do not make the entire deed null and void. If the primary terms
of the agreement are obvious, recitals (introductory statements) are usually disregarded, and
mentioning earlier transactions does not always include all of those terms unless specifically
stated. The overall goal of these guidelines is to guarantee that the parties' intent is accurately
and clearly reflected in legal documents.
Legal implications and requirement’s
Accurate drafting of legal documents is essential to avoid serious legal complications. When a
document's language is unclear or ambiguous, it can result in multiple legal issues, including
vague or doubtful interpretations of the intentions expressed, inherent ambiguities, and
challenges in fulfilling the intended objectives. Such ambiguities can lead to increased
litigation, consuming time, money, and human resources, while also causing misinterpretations
that may result in wrongful judgments. Moreover, poorly drafted documents can harm innocent
individuals. To prevent these adverse outcomes, it is vital that draftsmen strictly adhere to sound
drafting principles, ensuring clarity, precision, and adherence to legal standards, thus
safeguarding the intentions and rights of all parties involved.
Deed and Document
Drafting and conveyancing legal deeds require an understanding of their terminology and types.
Gift deeds, sale deeds, lease deeds, and power of attorney are examples of formal, non-
testamentary written documents that contain rights or duties. Although it is frequently used
interchangeably with "document," not all documents are considered deeds. Deeds are
documents that convey an interest, right, or property that are written on parchment or paper,
sealed, and delivered.
There are various types of deeds, and each has special qualities. A warranty deed contains a
warranty covenant, whereas a good deed transfers a legitimate title. A voluntary deed is given
without receiving payment, typically out of love or kindness. Other kinds include pretended
deeds, which seem legitimate at first glance, and latent deeds, which have been preserved for
more than 20 years.
Various kinds of deed
These components and definitions are foundational for effective drafting, ensuring the clear
conveyance of rights and obligations while minimizing misinterpretation.
• Deed Pool: Multiple copies for each party involved.
• Deed Poll: Executed by a single party, often for powers of attorney.
• Indenture: A deed for two or more parties, traditionally with an indented top.
• Cyrographum: An old practice where a jagged line was cut through the word "Cyrographum"
for security.
• Deed Escrow: A deed awaiting final signature and delivery, conditional on specific actions
being performed.
Components of deed
1. Description of the Deed Title: Clearly defines the nature of the deed, such as a Deed
of Sale, Mortgage, Lease, Gift, etc., indicating the document's intent.
2. Place and Date of Execution: Specifies where and when the deed is signed, essential
for legal and jurisdictional purposes, including registration timelines.
3. Description of Parties: Identifies all parties involved with full details (name, address,
etc.), ensuring each party is easily distinguishable.
4. Recitals: Provides the background of the property and transaction history, often using
"Whereas" statements to establish context and motive.
5. Testatum: The "witnessing" clause, confirming the consideration and often starts with
“Now This Deed Witnesses”.
6. Consideration: Indicates the value exchanged in the transaction, necessary for stamp
duty calculations.
7. Receipt Clause: Acknowledges the receipt of the consideration amount by the
transferor.
8. Operative Clause: Outlines the exact nature of the transaction, such as “Transfer by
way of simple mortgage”.
9. Description of Property: Gives a full account of the property, including
measurements, boundaries, etc., for identification in government records.
10. Parcels Clause: A technical description of the property, detailing its features in a
specific order.
11. Exceptions and Reservations Clause: Lists any rights retained by the transferor,
provided they do not contradict applicable law.
12. Premises and Habendum: Specifies the interest the purchaser will hold in the
property, traditionally starting with “to have and to hold.”
13. Covenants and Undertakings: Outlines the parties' promises or obligations within
the deed, which can be either expressed or implied.
14. Testimonium Clause: Marks the close of the deed with a statement of signatures,
signaling the document's completion.
15. Signature and Attestation clause
The deed shall be signed by an authorised person in accordance with the entity's
rules or resolution if the executant (the person signing the deed) is incompetent
or a juristic person (such as a company). The seal needs to be attached for
businesses as well.
16. Endrosments and Supplemental Deeds
Endorsements are used for negotiable instruments and are governed by customs
or banking norm. A separate deed executed to amend or add new facts to an
existing deed.
17. Annexures or Schedules
Without essential information regarding the property, such as the plot number,
survey number, or revenue details, a deed is not complete. To make sure the
property can be easily traced, these facts are usually put in an annexure or
schedule.
Engrossment and Stamping of a Deed
A document's draft needs to be authorised by all parties. The Board of Directors
or a properly established committee must pass a resolution in order for a
corporation to receive this approval. The document is engrossed (copied) onto
non-judicial stamp paper of the appropriate value in accordance with the Stamp
Act after it has been approved. The document can be sent to the Collector of
Stamps for review if it is written on plain paper. The Collector will then approve
the payment of stamp duty on the document. A document that is not properly
stamped cannot be registered with the Registrar of Assurances and is deemed
inadmissible in evidence.
