In a meeting last week, an AmLaw 100 partner related to us that he had just completed a commercial transaction in Germany, where, under the German Civil Code, the contract had to be read aloud in the presence of a notary before it could be executed. While this initially struck us as archaic and inefficient (and about as entertaining as listening to Andy Rooney narrate the changing seasons), that partner continued to point out the convention’s one hidden benefit: brevity. Because each German drafting party knows that they’ll eventually wind up sitting around a table in Freiberg or Bremen listening to a recitation of their work, there is very little tolerance for hyper-parsing we see so often in our US contracts.
For example, according to the partner, German representations tend to be very terse: “the seller represents that he or she has no knowledge of any material environmental liability on the premises” rather than, “the seller, and those persons named on Schedule F attached hereto each jointly but not severally covenant, represent, and warrant that they have no knowledge of any material environmental liability on or emanating from the premises, where “knowledge” means not only the actual knowledge of the party making such covenant, representation, or warrant, but also the imputed knowledge of such facts and circumstances which would said party would have perceived if they had undertaken a reasonable investigation of those premises no less frequently than annually, and where “material” shall mean “likely to result in total costs of investigation, remediation, or adjudication in excess of fifty thousand dollars ($50,000) USD.”
All in all, an interesting way to force efficiencies into contract drafting. Increase the pain and expense associated with long-windedness and you tend to get more conciseness. Maybe if we installed a device here that would jolt our correspondents with 5,000 volts when they exceeded 300 words per bleaf, we could achieve the same effect.
Kurz ist nett (“concise is nice”).