Updated Aircraft Buy/Sell and Liability Waiver Templates

DaleEgan is licensed to practice law in Wisconsin. Mr. Egan assists AOPA members with aviation related matters including FAA Enforcement, aircraft purchases and aircraft sales. He is a Director with Bye Aerospace in Denver, Colorado, a company working to certify an all-electric two-seat trainer, and a Director with the national Alzheimer’s Association. Mr. Egan is also theVice President and Volunteer Pilot for the Hershel “Woody” Williams Medal of Honor Foundation where he has presented veteran initiatives at the White House.

This month’s article is a lighthearted introduction to Aircraft Buy / Sell and Aircraft Ride Liability Release & Waiver templates.

As an AOPA panel attorney, I occasionally work with aircraft buyers and sellers.  Often, the PPS member has already accessed various sample agreements.  After several transactions, I noticed we often spent more time cleaning and fixing the poorly written base template itself than actually drafting the relevant factors for the particular parties.

I am a strong advocate for “plain language” writing style in all legal documents.  This is particularly true for repeatedly used transactional templates that are often reviewed by non-lawyers.

The update process included (1) cleaning and simplifying the language and (2) modernizing the visual format.  The goals of these updates are to help make the buy/sell and related processes easier to understand and to make it faster to draft an accurate agreement.

Fun with Lawyers

For a profession that uses words as its medium, we lawyers sure can torture that medium.  Lawyers have even earned a legitimate Webster’s term for it: “legalese.”  Is there a similar word for engineers?  I don’t know of one.  Words, sentences, paragraphs, and entire contracts lawyers write might often receive a C- in high school English.  After 20 years in practice, I am not sure if it is heritage, puffery, flamboyance, or function that makes lawyers write such awful, run-on, convoluted, vague, and passive-tense sentences.  Even in short contracts, there are often needless compound sentences (with confusing parentheticals) that require the reader to “remember” three topics and two counter-topics all at the same time.  This writing style does not support the core purpose of an agreement to ‘capture the intent of the parties,’ or convey the message of the author; it works strongly against it.

Why Is It That Way?

If you have ever seen a stereotypical bloated 78-page commercial lease agreement, it might be obvious that a lawyer rarely actually sits down and “writes it” from scratch.  Rather, such agreements are often a Frankenstein quilt stitched together over many years.  Each time, the document is adjusted to “address a unique issue that occurred with the last contract.”  When done well, that is a normal and good thing.

However, like recently popularized DNA ancestry tests, all templates of the world likely share a word or phrase in common going back to some stone tablet.  I literally last saw a “Y2K” provision last year in a 2017 contract.  You might imagine we slightly enjoyed pointing this out to the opposing party who provided the contract.

For example, the following common provisions seem to demonstrate that contracts are often too long, convoluted, and confusing:  (i) “Notwithstanding anything to the contrary in this agreement…” or (ii) “In the event of a conflict between this agreement and the addendum, the addendum shall prevail.”  What?  Don’t those two statements admit the author does not even know if they have drafted conflicting provisions in the same agreement?

Cleaned and Simplified Language – A Few Comparisons / Examples

There are too many examples for a short article, but here are a few common legacy phrases.

1. “WHEREAS…this party wants bananas,” “WHEREAS….this party sells bananas,” “WHEREAS…”
   1. Why such a tortured multi-line format?  Who says that in real life?  No one.
   2. Just state “The purpose of the agreement is…”
2. “IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.”
   1. “In Witness Whereof” has no legal meaning, perhaps other than to look intimidating.  No judge ever altered the outcome of a contract dispute based on a 16-word preamble to a signature block.
   2. Just use “Signed.”
3. “Buyer will present to Seller...” 
   1. “present?”  How noble sounding!  There are no ceremonies or trumpets involved.
4. “This agreement may not be enlarged, modified, or altered except in writing signed by the parties.”
   1. Do we need that many synonyms?  Getting paid by the word?
   2. Just write “Amendments to this Agreement must be in writing and signed by both parties.”
5. “Buyer shall deposit all monies…”    
   1. “Monies?”  Who says that?  No one.
   2. It is just “money.”
6. “Buyer shall pay a deposit of…” 
   1. Just write “Buyer shall deposit”

Modernized Visual Format

Legal templates today are generally not printed on paper with [insert bracket _______] and filled in by hand.  Website and smartphone interfaces today have significantly increased expectations for simple, intuitive “visual clarity.”  Similarly, these templates use modernized (i) input fields, (ii) basic data tables, (iii) options, and (iv) descriptive headers.  Blue text represents a choice between options or data to fill in.  Green text represents optional provisions to include, delete, or adjust, as necessary.