Common Elements of Business Contracts, Part1: Preamble to the Contract


This is the first is a series of articles [1] presenting an overview of various provisions commonly found in business contracts, primarily from the point of view of the drafting attorney. [2]

Preamble

The primary purpose of the preamble is to identify the parties and, usually, to create a shorthand name for each of them. The parties should be uniquely identified so there is no possibility of mistake. Secondary purposes are, sometimes, to create a shorthand name for the contract itself and to assign a date to the contract.

Identifying the parties

The usual way to identify a corporation, a limited liability company, a limited partnership, or another type of entity that requires some sort of organizational document to be filed with the Indiana Secretary of State (or a similar official in another state) is to state the exact legal name of the corporation, the type of entity, and the state in which the entity is organized. The reason for naming the state in which the entity is organized is to ensure that the party is uniquely identified. Although there may be two different corporations with the same name, there will never be two different corporations with the same name organized in the same state.

Another way to identify corporations, LLCs, LPs, etc. is to state the address of a place of business, usually the principal place of business. Note, however, that there is no need to include both the type of entity and state in which the entity is organized and an address. Either one will uniquely identify the party.

General partnerships are not registered with the Secretary of State, so naming the state of organization does not work. Instead, state the exact name of the partnership, identify it as a general partnership, and state a place of business, preferably the principal place of business. Strictly speaking, stating that the party is a general partnership is not necessary to create a unique reference, but doing so nonetheless provides useful information, particularly if the parties end up in litigation, that will probably not appear anywhere else in the contract.

A common method of identifying individuals is to name the state of residence; however, that does not uniquely identify the individual. There are many residents of Indiana named Michael Smith, Michael R. Smith, and even Michael Ray Smith. A better practice is to state the party’s exact legal name, identify the party as an individual, and include the individual’s residential or business address. [3]

DRAFTING TIP: When you are contracting with a corporation, LLC, or other entity, make sure you know precisely which entity you are contracting with. Contracting with a subsidiary is not the same as contracting with the subsidiary’s parent.

DRAFTING TIP : When dealing with a division of a corporation or other entity, the entity itself should be the party to the contract, not the division, which has no separate legal identity. Both the entity and the division may be mentioned, but the entity should be the party to the contract.

DRAFTING TIP : Unless you are sure of the exact legal name of the party, look up the name on the website of the appropriate state official. [4] Then state it exactly the way it is stated in the articles of incorporation or other organizing document. For example, it is Eli Lilly and Company, not Eli Lilly, Eli Lilly and Co., or Eli Lilly & Company.

Contract Date

Most preambles contain a date. Unfortunately, the consistency ends there. In some cases, the date is intended to be the date the contract takes effect. In others, it is intended to be the date that the parties sign the contract, which may or may not be the date the contract takes effect. In others, it is intended to have no legal significance at all but merely to serve as a means of reference and to distinguish it from other contracts between the same parties. In many contracts, the drafter leaves a blank for the date to be filled in when the parties sign the contract, with the all too frequent result that the blank is never filled in.

The author prefers not to include any date in the preamble, to address the effective date in the body of the contract, and to include a date for each party’s signature. He believes that approach reduces the possibility of any misunderstanding with respect to the effective date or the date on which the parties signed the contract. A reasonable alternative is to include the effective date in the preamble, and to identify it as the effective date, as shown in the examples in Section I.A.5, with a date in the signature block for each party. [5]

Creating a shorthand name for the contract.

Most preambles create a shorthand name for the contract that is used throughout the rest of the document. Alternatively, the shorthand name for the contract can be created in a list of definitions.

Other drafting details

Some preambles are unnecessarily wordy. For example, the preamble need not state that the agreement is “by and between” the parties; “between” is entirely sufficient.

Some drafters use “between” if there are two parties to an agreement and “among” if there are three or more. Although it is not a significant point, “between” is acceptable, and even preferred, no matter how many parties there are.

Examples of preambles

An example of a preamble that includes the effective date and a shorthand name for the contract, with a corporation and a limited liability company as the parties.

This OFFICE LEASE AGREEMENT (“Agreement”), effective as of July 1, 2011, is between Yeager Properties, Inc., an Indiana corporation (“ Yeager”), and Smith Rayl Law Office, LLC, an Indiana limited liability company (“Smith Rayl”).

An example of a contract with no date and no shorthand name for the contract. The parties are an individual and a general partnership.

This AGREEMENT is between Donald Draper, an individual residing at 104 Waverly Place, Apt. 3R, New York, NY 10011 (“Draper”), and Sterling Cooper Draper Pryce, a general partnership located at 1271 Avenue of the Americas, New York, NY 10020 (“Sterling Cooper”).



[1] These articles are adapted from materials prepared by the author for a continuing legal education seminar, “Business Contracts from A to Z,” sponsored by National Business Institute, and presented by Michael Ray Smith of Smith Rayl Law Office, LLC; and by Trevor J. Belden and Robert K. Stanley of Faegre Baker Daniels, LLP on August 19, 2011, in Indianapolis, Indiana. Used by permission of National Business Institute.

[2] There is no universally accepted structure, format, or style for writing business contracts. In contract drafting, as in computers, “The nice thing about standards is that you have so many to choose from.” Andrew S. Tannenbaum, Computer Networks, 4th ed., quoted at http://en.wikiquote.org/wiki/Andrew_S._Tanenbaum. Two references sometimes used by the author are Kenneth Adams, A Manual of Style for Contract Drafting (2008). Another reference for specific provisions is Tina L. Stark (ed.), Negotiating and Drafting Contract Boilerplate (2003). These two sources are subsequently referred to as “Adams” and “Stark.”

[3] Adams believes the address of an individual should be omitted from the preamble if the address also appears in a notice provision elsewhere in the document.

[4] In Indiana, go to https://secure.in.gov/sos/online_corps/name_search.aspx.

[5] Adams, at p. 5, recommends against including a date in the preamble if the signatures are dated.