Almost all lawyers have from time to time to draft a document which would fall within the description of being a “commercial agreement”. To many, the drafting of commercial agreements is the staple diet of their professional lives. Drafting is a subject taught in little depth in universities or law schools, if at all. Drafting Commercial Agreements by Alan Berg states that it is a book “mainly intended to assist those starting their careers as lawyers”. It should therefore be particularly welcome to the student, the trainee, the pupil or the junior assistant. In the Preface the author suggests that the book “may also be of interest to more experienced practitioners, including lawyers in other European countries who need to prepare contracts in English”. How far does it achieve these aims?

For those starting their careers as lawyers the book will at once be attractive and informative. The list of chapter headings will alone indicate the width of its coverage: structure of the typical agreement; commencement and execution clauses for agreements; deeds; style; clauses and their sub-divisions; paragraphing; recitals; definitions; non-literal interpretation; general provisions; technical issues; arithmetical expressions and expressions of time; conditions precedent and termination clauses; amendments; set-off and rights of retention; boiler-plate; applicable law; jurisdiction; notarization. All the above occupy a mere 200 pages. There then follow 85 pages of miscellaneous appendices, largely source material, such as the Brussels and Lugano Conventions, many extracts from statutes and including a fascinating (but largely irrelevant) account by Lord Thring, the first full-time parliamentary draftsman, of the different ways in which he received instructions from Gladstone and from Disraeli.

That the beginner will learn from this book much about the technicalities of drafting a commercial agreement cannot be doubted. However, this may largely be because he or she has previously known almost nothing about the subject. This makes the author’s task both easier and more responsible. The classic way to learn to draft is to have a sound knowledge of both the subject-matter of the agreement and the law, and then to be taught on a one-to-one basis by a skilled and experienced draftsman. This is how parliamentary counsel learn their trade—or is it an art? Is reading this book a substitute way of learning to draft? The answer is that the beginner must approach the book with a considerable measure of caution.

Any lesson from the experienced draftsman must start with some very basic precepts. These include: do not start to draft until (a) the policy to be given effect to has been fully understood and tested for its legal soundness (a proposition applied ruthlessly by parliamentary counsel) and (b) the structure of the whole has been worked out; achieve the end result wanted and do not leave the client unprotected in the event of non- or mis-performance; do not finish the task until the draft has been read through minutely for textual errors, for ambiguities, for inconsistencies and to ensure that (as can easily happen at the end of a long drafting session between lawyers) it will produce no unintended consequences; by all means use precedents taken from similar transactions or books of precedents but always think carefully about the relevance and legal effect of any words borrowed from elsewhere; respect another lawyer’s draft (although test every word of it) and do not change it merely for the sake of change; and never include any words which are not fully understood for their meaning and