Understanding the Role of Recitals in Contracts

I recently delivered a lecture on the impact of legal documents on digital communication strategies to students in the subsequent master’s degree in digital communication (DAS Communication digitale) at the University of Geneva. To complement our discussion, I have crafted this article to explain some of the insights shared during the session and how they may be applicable to digital communication projects.

Although the use of hard and fast rules may not be appropriate for crafting your digital communication, the basic concepts behind the purpose and structure of these legal documents can be translated into strategies to ensure greater clarity and ultimately reduce confusion.

What are recitals in a contract? To understand how these concepts may be applicable to your own work, you first need to understand what recitals in a contract are and their purpose. You may know them by another name including preamble, whereas in French they are referred to as “considérants”. They are typically found at the beginning of a commercial or business contract and are intended to establish context or provide support for the intentions of the parties that they wish to set down in writing.

For example, in a judgment by the Geneva Court of Appeal on the obligations of a loan guarantor in case of bankruptcy, the Court’s decision on what constitutes a valid guarantee from the guarantor is supported by the recitals. Essentially, recitals provide context for what follows in a commercial contract.

If the parties had not taken care to set out the context for their agreement in their recitals, the Court might have come to a different conclusion. This may have resulted in a bizarre situation that could have left the lender in the unfortunate position of losing the protection offered by a written agreement.

In commercial contracts, focus on recitals may inspire content strategy. Now that you have an idea of what recitals are and the role they carry in legal documents, how can they be used in the context of a digital communication project or strategy? In the context of commercial contracts, recitals serve the following purposes:

When we communicate digitally, we often find ourselves lost for words. Instinctively writing, editing and finalizing our content without thinking about what is most important for the target audience at the outset. Whether on a Blog or social media, it is necessary to take a step back to consider and understand the purpose and context of the message. At a minimum, a verbal campaign strategy should contain the following components:

If the central concept of a message were to be likened to a commercial contract, then the concept would be similar to comprehensive recitals in a contract. In this case, it is the context in which the message is being shared that must be understood to ensure the final content strategy is connected to what the audience is looking for.

In the same way that recitals may support the intention of the parties to a commercial contract, the central concept for a communication strategy may support the intention of the sender. For example, in the same way that it is necessary to understand the position of the parties to a commercial agreement and what they wish to achieve via the contract, it is also necessary to understand the ability of the message to achieve a particular purpose. If the message would like to generate new leads, for example, the focus may need to be placed on providing a certain level of detail about the product or service, instead of a general statement about why the product or service being offered is valuable to the specific target.

By focusing on these components, initiatives such as social media campaigns can gain the same level of clarity in terms of direction and aim and reach their intended goals.

Recitals in a contract and types of ambiguity. As I mentioned previously, in the same way that recitals are important in a commercial contract, there is also a risk of an outcome that is not intended due to a lack of clarity or context. For example, one of the most common ways that ambiguity can result in a legal context is when the words that are chosen are not sufficiently specific to capture the intention of the parties.