As non-native English speaking law practitioners or law student, sometimes we have difficulties to draft the legistlative sentence in the contract.
What is the legislative sentence? It is a sentence designed to confer rights or power to impose duties. It can be used for prohibitions. If we want to draft the legislative sentence, I think we have to understand Coode’s model. Well, George Coode is an English barrister who developed a model legislative sentence which has been adopted by drafters in most Commonwealth countries and some American states. Coode’s model has also influenced the drafting of clauses in legal document particularly contract.
Pursuant to Coode, most law is designed to change the position of a person or class of person by conferring a right, privilege, or power or by imposing duty. To carry out these functions effectively, a legislative sentence should contain three elements e.g.:
- Legal Subject: a description of the person or class of person who is given to a power or duty or whose legal position is otherwise affected by the operation of law.
- The legal action: a description of the legal action or legally significant impact that will result from the operation of the law.
- The case: a description of the facts that must have occurred, the circumstances that must be present, and the conditions that must be met for the law to operate.
For example: If the facts described in this subordinate clause have occurred, all persons are entitled to unemployed insurance. I think those elements mentioned by Coode can help us to prepare draft of legislative sentence because drafters have to think first, the desired legal actions must be identified and categorized, second, once identified and analysed, the legal action shall be then matched with appropriate subjects, and finally, the case for each action shall be determined.
Have fun writing legal drafts!!!!!