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Brave new world

26 March 2015

The authors of this article – Murray McCutheon, Russell Cocks and David P Lloyd - explain the general principles behind their drafting of the Electronic Conveyancing (EC) clause, to be added to the standard contract of sale. As the authors of the standard contract, they initially drew the EC clause as a national non-jurisdiction specific clause and then created a Victoria specific clause.

The paper goes into great detail about the specific aspects of the clause and the rationale for drafting, while it is assumed that the reader is reasonably familiar with how electronic conveyancing operates in PEXA. Of interest however is the following extract concerning the general drafting principles they used for the drafting of the EC clause.

“The general principles that we employed in drafting the EC clause were:

1. We recognise that the conveyancing process is not perfect at present. We have resisted any temptation to reform the conveyancing process itself and have only included matters relating to electronic conveyancing as it will be operated by Property Exchange Australia Ltd (PEXA) or as otherwise required because there will be no physical settlement if it is conducted electronically;

2. Stylistically, the EC clause has been drafted on a property law principles-based approach, and it is specifically designed to not be overly prescriptive;

3. The EC clause is drawn in a plain English style as far as practicable. However, the simplicity of its drafting style should not mislead anyone into believing that the clause can safely be used by someone other than a practitioner with suitable knowledge, experience and skill in property law and electronic conveyancing;

4. The EC clause is designed to be added as a special condition to the standard contract in the first instance. This has the advantage that it can be "road tested" by the first pilot firms to use electronic conveyancing to enable evaluation of how the clause operates in practice and allow us to make any necessary changes to take account of unexpected issues before it is incorporated as a general condition in the next edition of the standard contract; and

5. We have avoided numerous and lengthy definitions. The drafting style intends that words have their plain meaning except in a few specific cases. Expressions used and defined in the relevant legislation2 arc not defined again in the EC clause as this would be merely repetitious.”

Law Institute Journal

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