Common problems in drafting definitions

In drafting definitions, it is vital to ensure that they will work in the context in which they are used and that their content (that is, what is included in or omitted from them) will not cause difficulties. Poorly

drafted definitions often indicate that the lawyer may not have fully understood the subject matter with which he is dealing or that he has used a precedent, but has failed to amend its definitions to meet the requirements of his task. Unless a definition is considered in the context in which it is used, its inadequacies may not become apparent until the document has been executed and when it is, normally, too late to take action to deal with the problem. The following problems can arise in relation to definitions.

4.4.1 Omissions

A definition may, when considered together with other definitions in a document, or in the context in which it is used, reveal that it has failed to deal with a particular matter.

Omissions can sometimes occur when the rights of individuals are defined by reference to a particular date or age or qualification.

For example, the rules of a members’ club may provide for different privileges for two classes of members, defined as follows:

‘Old Members’ means members who joined before 31 December 2000.

‘New Members’ means members who joined after 1 January 2001.

When these definitions are considered together it is apparent that members who joined on 31 December 2000 or on 1 January 2001 are neither Old Members nor New Members. The omission could have been avoided by inserting the words ‘on or’ after ‘joined’ in each definition.

4.4.2 Overlaps between definitions

Definitions can cause confusion if they overlap. An overlap may only be apparent when the definitions are read together or when they are applied in a particular context, as the following example illustrates:

‘Excluded Person’ means a person who was born after 1 January 1990.

‘Included Person’ means a person who was born before 31 December 1991.

As these definitions are likely to be separated in an alphabetical list of definitions by other definitions, they must be considered together to ensure that they do not overlap. The overlap in the example above is likely to have arisen from a failure to transpose the year correctly in one of the definitions. A reader of the document may not have sufficient background knowledge to determine which definition is correct and if the error is discovered many years later there may be no evidence at that time to resolve the problem.

4.4.3 Multiple definitions for one meaning

Confusion can also arise where parts of different precedents are put together to form one document, with the result that two definitions are used for the same thing. Thus, for example, in a contract cobbled together from different sources, one source might refer to the ‘Employer’ and the other source to the ‘Company’. If

‘Employer ’ is struck out of the definitions section, but is nevertheless used as a definition in parts of the document, the reader will have to decide whether ‘Employer’ should be read as

‘Company’. This may not cause any difficulty so long as the

‘Employer’ and the ‘Company’ are the same person or legal entity, but if, at a later date, they are no longer the same, this could lead to problems. For example, if a clause in the document states ‘the Employer shall pay ...’, and the Company is defined, but the Employer is not, it may be unclear who must pay.

4.4.4 Loaded definitions

Sometimes, definitions are loaded with material which should properly appear elsewhere in the document. The object of a definition is to define, and not to set out rights, duties, powers, or privileges. These should be set out in the clauses in the document, since the reader would not expect to find such matters dealt with in the definitions and may overlook them or find it difficult to retain the additional information in mind when reading the document. For

example, the following definition is taken from an Inland Revenue document which limits the benefits payable from an exempt approved pension scheme:

‘Class C Member’ means any Member who joined the scheme before 17 March 1987 provided that the Member may elect, at any time, before the Relevant Date to be deemed to have become a Class A Member on 1 June 1989.

The right of election might be better placed in a substantive provision in the document.

Definitions may also be loaded, not because they refer to specific duties, powers and privileges, but because they contain too much material by way of definition. In such instances, consideration should be given to whether some or all of the material concerned should be set out in a clause in the document.

4.4.5 Provisos in definitions

Provisos in definitions make exceptions or qualifications to that definition. Provisos should be avoided for two reasons. First, the addition of provisos will make it more difficult for the reader to grasp the concepts which are defined and probably require him to read and re-read the definition to try to work out what it is intended to embody. Secondly, the addition of provisos making exceptions or qualifications to a definition is likely to create difficulty for the reader in applying the concept embodied in the definition in those parts of the document where it is used. He will probably find it necessary to refer back constantly to the definition. This is not only irritating, but may indicate that little care was exercised in drafting the definition in the first place. In many cases, the need for a proviso in a definition can be eliminated if the trouble is taken to redraft the definition. The use of provisos is explored further below, Chapter 6.