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Good legal drafting comes not just from an understanding of the law, but also from an ability to clearly and precisely articulate each party’s rights and obligations in a written contract. If you are a business owner, all of your legal documents must be well-drafted and specific. This way, you can be absolutely sure of your rights and obligations in legal relations. 

Contracting parties (and their lawyers) should be able to read the contract and understand exactly what all contractual terms and clauses mean. The words used in a contract are important as they create meaning for the parties. This article will explore the difference between “the” and “a” in a contract. It will also outline the impact of using the wrong word.

“The” and “A” in a Grammatical Context

Considering what “the” and “a” are, as parts of speech, helps to explain their significance within a legally binding agreement. “The” and “a” are “articles”, which are used to refer to or indicate a noun. 

For example, “the software” or “a laptop”. 

The difference between the two is that “the” is definite, and “a” is indefinite. When a person uses “a” or “an” in speech, they do not specify the noun to which they refer. For example,

  • a laptop;
  • an apple; or
  • a party.

Without clarification, the court may find these nouns could mean any laptop, apple or parties in the world. Using “a” before a noun does not mean that the speech lacks meaning, but instead, it indicates generality and ambiguity. We will later explore instances where using “a” in a legally binding contract may be useful. 

When a person uses “the” in speech, they are usually referring to a specific noun. If a person discusses “the table” with their friend, they both know the table to which they refer. It can only be one table. Similarly, “the software” refers to a specific piece of software rather than any software in the entire realm of software. 

The court would likely find the term “a laptop” to be indefinite and somewhat vague. On the contrary, “the laptop” is definite and precise. In certain contexts, using “a” or “the” is better in a contract, and preferable because the context demands it. Such is true when it comes to written contracts.

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The Importance of Clear Legal Drafting

Simply put, a valid contract is a promise which will be enforced by law. If you are a business owner, legal contracts are part and parcel of the work, and you likely have read some contracts that are poorly drafted and vague. A legal contract describes the rights and obligations of the parties to the contract. The language used in the contract will impact how the contract is interpreted by: 

  • your clients;
  • your clients’ lawyers; or 
  • even by a judge.

When contracts are vague and unclear, excessive time will need to be spent deciphering certain terms and agreeing on their meaning, often resulting in extra costs. 

“The” and “A” in the Context of Contracts

When used in conjunction with a defined term, the word “the” helps to create specificity. 

For example, the word “Software” might be defined in the definitions section of a contract as “the software the vendor is providing to the customer under this agreement”. Therefore, using the phrase “the Software” in a contract is very clearly referring to the software being provided under the agreement – not just any software.

Another example of where specificity is necessary is the following: 

If a manufacturer is manufacturing goods and is required to deliver the goods to a location, this location should be specified, and ideally, it should be defined. The manufacturer should deliver the goods to “the Location”, rather than to “a location”. 

Using “a” before a noun in a contract may be appropriate when there is more than one noun.

Consider where a “Party” of a contract is defined as “the two parties which have accepted the contract”. If both parties must give 30 days’ notice to terminate the contract, the termination clause might say: “A Party must give 30 days’ written notice to terminate this agreement”. Using the word “a” is most appropriate here because it refers to both of the two Parties. Both Parties have a right to terminate. In this context, saying “The Party must give 30 days’ written notice” would be unclear.

Building a Business Contract

It is evident that clear legal drafting, such as using ‘the’ or ‘a’, is at the crux of a solid business contract. However, other factors remain crucial. When you are building a basic business agreement, you must ensure it is written down. Whilst an oral contract can be binding, the terms are more often disputed. You should also ensure the basics of a business contract are covered. For example, your agreement should include the date when the agreement will begin and end, and the details of the parties. You may also want to consider optional clauses, such as a termination clause. It is also a good idea to consider seeking the assistance of a lawyer, who can help you draft with expertise.

Key Takeaways

It is apparent that legal drafting relates not just to a knowledge of the law, but also to clear and correct grammar. Business dealings and contracts come with a degree of risk. For a business to be able to make as informed a decision as possible about the potential benefits the contract offers, the risk must be as minimal as possible. Using “a” and “the” correctly helps to prevent ambiguity and unnecessary risk.

If you need assistance in drafting or reviewing legal documents, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions

What is a contract?

Simply put, a contract is a promise supported by law. The law enforces this promise because there was ‘consideration’.

Why is using ‘the’ important in a contract?

If I use ‘the’ in the clause, they have automatically introduced more specificity into the contract. My rights and obligations are more clearly delineated.

Why is certainty important?

Each party must know what they have to do. Without that certainty, it is risky.

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