Plain Language Isn’t Dumbing Down. It’s Smart Contracting

When Words Get in The Way

In my early years working in New Zealand construction, I remember standing on a dusty project site, contract folder in one hand, phone in the other. A subcontractor was frustrated as he felt blindsided by a deduction in his payment claim. I pointed him toward a clause buried in the special conditions. He looked at me, shook his head, and said something I’ll never forget:

“Why don’t they just say what they mean?”

At the time, I gave a polite shrug, said, “Yeah, sometimes the wording is tricky.” But that moment stuck with me.

Because he was right.

For years, our industry has accepted that contract documents must sound formal, dense, and sometimes inaccessible to the very people they govern. Legalese, convoluted clause cross-referencing, and obscure phrasing have become the norm. But what if the cost of that tradition is misunderstanding, conflict, and, ultimately, failure?

This article is a call to rethink that norm. To explore how plain language in construction contracts isn’t a simplification—it’s a smarter, safer, and more inclusive way to do business.

Why Contracts Write Like This

Legal documents weren’t always so hard to understand. Before the printing press, contracts were oral, built on reputation and trust. Over time, as legal systems became more formalised and enforceable, written contracts evolved to include more specific protections, disclaimers, and legal tests.

Enter “legalese”: a mixture of Latin phrases, archaic terms, rigid formatting, and wordy syntax. While the goal was to ensure certainty, the outcome has often been complexity, and, ironically, ambiguity.

In the construction world, where time, scope, and money are constantly shifting, this kind of ambiguity is dangerous.

For example, some standard NZ clause you will see in the contract:

“The Contractor shall provide forthwith, upon written request by the Principal’s Representative, all records and documentation reasonably required to substantiate the Contractor’s entitlement to the claimed Variation.”

Compare it to a plain-language version:

“If the Principal’s Representative asks in writing, the Contractor must quickly provide all records needed to support the Variation claim.”

Same legal effect. One version makes it easier for everyone, junior QS, subcontractor, client, to understand their responsibility.

So why do we still prefer the former?

The answer lies partly in tradition, partly in risk aversion, and mostly in a misunderstanding of what plain language actually is.

PLAIN LANGUAGE ≠ DUMBING IT DOWN

The term “plain language” is often mischaracterised. Many assume it means oversimplification or reducing a contract to casual speech. But this is a fundamental misunderstanding.

According to the Plain Language Association International (PLAIN), plain language is:

“Communication your audience can understand the first time they read or hear it.”

It’s about clarity, not simplicity. Precision, not poetic flair.

In legal writing, this means:

• Using active voice: “The Contractor must notify…” instead of “Notification shall be given by the Contractor…”

• Replacing outdated terms: “forthwith,” “hereinafter,” “notwithstanding,” etc.

• Cutting redundant phrases: “null and void” (they mean the same thing).

• Removing unnecessary cross-references: Trust that a clause can stand on its own.

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In construction, where many stakeholders have varying levels of literacy, education, and English fluency, this clarity is not optional, it’s essential.

Who Benefits From Plain Contracts

1. Subcontractors and Suppliers

These are the backbone of any build, yet they are often furthest from the lawyers who draft contract terms. Making the document readable reduces the risk of misunderstandings, payment delays, and disputes.

2. Junior Quantity Surveyors and Project Managers

Those early in their careers are often expected to enforce or explain contract clauses to clients, site teams, and trades. If the clause itself is a tongue-twister, confidence and accuracy suffer.

3. Clients

Clients don’t want to be trapped in jargon. They want to know:

• When will this be done?

• What will it cost?

• Who is responsible if something goes wrong?

Plain language gives them transparency, which builds trust.

4. Lawyers and Adjudicators

Yes, even the legal crowd benefits. Because the more readable a contract is, the easier it is to enforce fairly. Adjudicators, like myself, are often stuck interpreting the intended meaning of poorly worded clauses during a conflict. The clearer the language, the easier it is to resolve disputes efficiently.

Current Moves Towards Clarity In NZ

New Zealand is slowly catching up.

CCCS 2017 and NZS Series Updates

Both the CCCS (Consulting Contract for Construction Services) and the NZS 391X suite have begun considering plain language rewrites. As someone reviewing these contracts from both technical and plain-language perspectives, I can confirm: the change is challenging but overdue.

The recent NZS 3910:2023 update makes steps in the right direction, but there's still much work to do to:

• Clarify clauses on float ownership

• Streamline processes around delay and disruption

• Standardise terminology between payment claims and final accounts

  
  

Legislative Support

The NZ Plain Language Act 2022, while primarily targeted at public service agencies, signals a national shift toward readability and inclusion. The construction industry, deeply tied to public procurement, should embrace this direction too.

BUT WHAT ABOUT THE RISK?

A common objection to plain language is that it opens up contracts to “looser interpretation.” But in practice, it’s the opposite. The clearer the words, the less room for argument.

Risk = Uncertainty

If a contract term is vague, parties rely on memory, assumptions, and external communications (emails, conversations, etc.) to interpret meaning. This invites risk.

Clarity = Certainty

A well-drafted clause in plain language reduces reliance on external documents. It becomes self-contained and easy to enforce.

And remember: legal enforceability doesn’t depend on how fancy the words are, it depends on the intent of the parties. If your clause expresses intent clearly, you're safer.

How to Start Using Plain Language Today

You don’t need to wait for a new standard form to start using plain language in your work. Here’s what you can do:

FOR CONTRACTORS & SUBBIES:

• Ask for a summary of the contract in plain terms.

• Annotate your contract with plain language notes in the margins.

• Don’t be afraid to ask what a clause really means, early.

  
  

FOR CONSULTANTS:

• Include plain language summaries in tender documents.

• Structure payment clauses, EoT procedures, and claim processes like checklists.

• Use diagrams to show risk allocation or timelines.

“If you can't say it clearly, do you really understand it? ”

Plain language isn’t just a writing technique. It’s a mindset. A commitment to equity. A choice to bring more people into the circle of understanding and accountability.

It says to your team, your partners, your clients:

“I respect you enough to be clear.”

If we want a smarter, safer, and more sustainable construction industry in Aotearoa, this is one of the best places to start, not with more clauses, but with better ones.

Because at the end of the day, a contract isn’t a trophy of intellect. It’s a tool for trust.