Legal Drafting: Instructions to Execution

Define the Instrument’s Intended Effect

Write down what the instrument must make happen before choosing its clauses. Identify who must perform each obligation, what starts it and what happens if performance fails. Separate an agreed commercial outcome from a fact that still needs confirmation.

For a supply agreement, an instruction to “protect payment” leaves several decisions open. Confirm whether payment follows dispatch, delivery or acceptance. Ask whether disputed amounts can be withheld and whether late payment permits suspension or termination. Record the client’s answer beside the corresponding provision.

Establish the legal parties and their capacity, the governing law and who can give instructions. Check company details against the Australian Securities and Investments Commission’s company register guidance. Identify any trustee, agent or guarantor separately, with the evidence supporting that role.

Before drafting, record missing facts and the person responsible for obtaining them. An assumed delivery address can be confirmed by operations staff. A proposed personal guarantee requires a client decision and legal assessment. Keep both out of the settled terms until resolved.

The Law Council’s conduct rules resource identifies the applicable jurisdictional versions. Use the version governing your practice when checking instructions and professional responsibilities.

Choose and Adapt a Precedent

Choose a precedent because its transaction structure and legal basis fit the instructions. A familiar legal drafting template can contain provisions negotiated for a different client, a different allocation of risk or superseded law.

Keep the approved source precedent unchanged and create a working copy. Record its origin and version, then compare its assumptions with the current transaction. Check whether its parties, supply model, governing law and payment sequence match the proposed agreement.

Mark departures from the source and explain substantive changes in the revision record. Remove inherited provisions that contradict the arrangement. For example, a clause allowing unilateral price changes conflicts with instructions for a fixed price unless the parties approve an exception.

Check the rest of the document after deleting a clause. A removed guarantee can leave a defined guarantor, a signature block and an obligation in a schedule. A clean-looking main body can still incorporate the old requirement through those references.

Creating your client’s proposed terms is a different task from contract review of an agreement supplied by the other side. Keep the drafting record focused on the legal effect your client has instructed.

Draft Operative Terms Before Polishing Language

Draft the provisions that create the arrangement before editing the document for style. Use the following sequence to expose dependencies while they are still easy to change.

1. Draft each party’s performance and payment obligations, including the events that trigger them.
2. Add conditions that must be satisfied before an obligation starts, with responsibility for satisfying each condition.
3. Write the consequences of delay, breach and termination. Decide which obligations continue after the agreement ends.
4. Define terms that the operative clauses actually need, using the same term consistently.
5. Complete schedules and supporting mechanics, including notices, variations and the order of precedence between documents.

Consider this original hypothetical payment provision. Assume the parties have agreed that payment follows delivery and that suspension requires an additional notice period.

The Buyer must pay each undisputed invoice within seven Business Days after receiving both the invoice and the Goods described in it. If an undisputed amount remains unpaid five Business Days after the Buyer receives a written notice requiring payment, the Supplier may suspend further deliveries until that amount is paid.

The Buyer is the actor and payment is the action. Receipt of both the invoice and goods starts the seven-business-day period. Continued non-payment after the notice period permits suspension. The clause deliberately leaves disputed amounts outside that suspension trigger.

The example still needs surrounding provisions. Define Business Day, establish when delivery occurs and connect receipt of a payment notice to the notices clause. Specify how a dispute is raised and how the undisputed balance is paid. Confirm that suspension fits the client’s commercial instructions and the applicable law.

A weak alternative is “Payment is due promptly after delivery.” That wording leaves the payer unnamed and the payment period uncertain. The worked provision makes those choices visible so the solicitor can assess them.

Use Drafting Software and AI With Controls

Use legal writing software to support specific drafting tasks while retaining responsibility for the instrument’s effect. Word-processing tools can manage numbering and comparisons. Clause libraries supply reusable text, while AI can suggest wording that requires substantive assessment.

The joint statement on AI in Australian legal practice addresses solicitors in New South Wales, Victoria and Western Australia. It requires continued compliance with confidentiality and professional duties. Solicitors using AI for documents must verify the information those documents contain and supervise staff use.

Keep confidential client material out of public AI tools. Assess an approved provider’s contractual protections and security before using client information. Use fabricated details when testing a drafting suggestion that does not require real client data.

Read each proposed change against the instructions and the existing document. Verify cited legislation and cases in authoritative sources, including the proposition attributed to them. Reject invented authorities and clauses that conflict with another provision.

Treat a change from “may suspend” to “must suspend” as a change to the client’s rights, even if software describes it as clearer language. Compare defined terms and exceptions after every accepted rewrite. A supervising solicitor must settle work prepared by a paralegal or junior solicitor under the practice’s review arrangements.

The wider confidentiality and verification workflow belongs with AI legal document review. Selecting a system that assembles documents through fixed rules belongs with legal document automation.

Test the Draft Against the Instructions

Run the draft through performance and failure scenarios, then compare each result with the instructed outcome. Trace the relevant provisions together, including schedules and incorporated terms. A clause can work alone and fail when another clause overrides it.

For the hypothetical payment provision, record the following checks.

Scenario	Draft result to check	Repair if the result differs from instructions
Invoice arrives before the goods	Payment time starts only after both are received	Remove any schedule term starting time from invoice issue alone
Goods arrive late	Delivery obligations and agreed delay remedies still operate	Resolve a payment clause that accidentally excuses late delivery
An undisputed balance remains unpaid	Suspension follows the additional written notice period	Correct conflicting notice periods or receipt rules
The agreement ends before payment	The treatment of accrued payment obligations is stated	Add the instructed survival and final-account provisions
The parties disagree about partial delivery	The draft identifies the amount payable and when time starts	Define how partial deliveries and their invoices are treated

Keep factual confirmation separate from legal verification and client choices in the revision record. For example, operations staff confirm the delivery process, the solicitor checks the legal basis for a remedy and the client chooses the acceptable credit period.

Give each unresolved item an owner and a consequence. If the client has not chosen whether partial deliveries are payable separately, withhold settlement of the execution version. Do not let the precedent’s default choice silently become the client’s instruction.

Settle the Execution Version

Settle a single execution version only after the legal and commercial choices are resolved. Reconcile the final document with the approved changes, then run a comparison against the version the client authorised.

Check party names and capacities, signing authority, attachments, numbering, cross-references and every incorporated document. Confirm that the execution blocks match the actual parties and chosen signing method. Remove drafting comments and unresolved tracked changes from the signing copy while retaining the working record.

For an Australian company using section 127(1) of the Corporations Act 2001, signing without a seal can involve two directors or a director and company secretary. A sole director of a proprietary company can sign under that provision if also sole secretary, or if the company has no secretary. Electronic signing must satisfy the applicable requirements, including section 110A.

Those company provisions do not prescribe the formalities for every instrument or signatory. The Australian Government Solicitor’s execution guidance explains why the entity and instrument matter. Check the applicable legislation and any registry requirements for the document being prepared, including required witnessing, consent or registration steps.

Preserve the approved execution copy and the completed signed instrument with their attachments. Record who must arrange any delivery, registration or post-execution notice. State when each action falls due. Before closing the drafting task, confirm that the signed instrument matches the approved version and each remaining action has a named responsible person.