In the dead of night (which is often the time where lawyers find themselves drafting contracts), it is easy to miss the looming error of a typo or other mistake. One such mistake is the particularly dreadful “ghost definition”, which stealthily sneaks into contracts and keeps lawyers up at night.
A ghost definition is a drafting error that occurs in two circumstances:
A capitalised term is used in the body of a contract without that term being defined in the definition list.
A term is defined in the definition list of a contract without that term actually being used in the body of the contract.
Below, we discuss how it happens and how ClauseBase is designed in such a way as to prevent it from happening.
How the ghost of a definition lingers on
Lawyers generally start drafting a new contract on the basis of a template or a previously created contract. These documents tend to already feature pre-set definition lists. If, in the course of altering the existing material, a new definition is added (without using that definition in the contract body) or a certain term is removed from the contract entirely (without removing the definition from the definition list), this can create an internal inconsistency which is easily missed.
The embarrassing (at best) and potentially case-breaking (at worst) error of ghost definitions is unfortunately the natural consequence of drafting in Microsoft Word, which is not designed to pick up on these inconsistencies. When you capitalise a term in the middle of a sentence, Word does not know that this means that a definition should be included for that term. Hence, it is up to the drafter to retain the consistency between definition list and contract body.
It is for this reason that checking for these errors features somewhere at the top of most lawyers’ priority lists when it comes to performing a so-called “sanity check”. Unfortunately, this exercise takes up a large amount of time. In a world where alternative fee arrangements and commoditisation of legal services are on the rise, this time-sink and quality assassination needs to disappear.
Nevermore? How ClauseBase exorcises the ghost definition
One of the benefits of working with intelligent clauses is that ClauseBase picks up which clauses have terms in them that need a definition (whether or not these terms are capitalised or not) and provides a handy overview for all those terms it has found throughout a contract. That overview looks like this:
As you can see, the “terms” overview collects all terms that require a definition in alphabetical order, and allows the user to immediately select a definition by pressing the arrows icon to the right and clicking choosing the appropriate definition. For example:
What’s more, ClauseBase even picks up on terms that are already defined within a clause itself (and so don’t need a definition in the definition list). When users have picked all the necessary definitions they can automatically generate a perfectly styled and alphabetically ordered definition list.
Ultimately, this means that both situations in which a ghost definition rears its head are prevented:
Users have a central overview of terms that need a definition so that no terms will go undefined.
Only terms that actually appear in the contract are included in this overview, so that no definition for unused terms is included in the definition list.