In MSCD (13.37–38) I briefly discuss “rhetorical emphasis”—adding verbiage to a provision not to change its meaning but to make it more emphatic. I suggest in MSCD that as a general matter you’re best off dispensing with rhetorical emphasis—the function of drafting is to state rules rather than convince anyone of anything. Nevertheless, one or more parties might feel more secure adding rhetorical emphasis to a particularly sensitive provision to show that they really, really mean it.
In MSCD 13.37 I give as examples of rhetorical emphasis whatsoever (including any manner whatsoever) and of any kind. (I also give as an example in its sole discretion, but I’ve since determined that that’s an entirely different can of worms; I’ll be doing a blog post on that issue sometime soon.)
Nowadays I amuse myself by keeping an eye open for additional examples of rhetorical emphasis. Here are a few, with the rhetorical emphasis (and any alternative language) in brackets:
- The Consultant will be [wholly and fully] responsible for any taxes owed to any governmental authority with respect to any fees the Company pays the Consultant under section 4.
The Depositary will [under no circumstances] [read not] be liable for any incidental, indirect, special, consequential, or punitive damages.
The Escrow Agent will [at no time] [read not] acquire any ownership interest in the Offering Proceeds.
This agreement will become effective [if and] only if Acme issues the Shares before the Termination Date.
If you know of any other examples, I’d be pleased to add them to my collection.
Ken: couldn’t agree more about the unnecessary use (misuse) of rhetorical emphasis in contracts. As a former litigator whose practice is now much more transactional, I consistent battle commission of this sin. However, I am one who believes there are times–perhaps more pointed, there are certain parties–that one feels a client may benefit from the emphasis on terms, either as a point of negotiations or to dissuade future misadventure. And, one should also take caution not to lose the full benefit of some phrases that are actually a legal hendiadys, which is a word phrase of two nouns separated by a conjunction, instead of a noun and its qualifier and that expresses a single idea. A common example is “arbitrary and capricious”, which is truly one standard and not two. For those who still labor in the litigation trenches or feel the need mentioned above to express that you “really, really mean it,” I’d refer you to a short article I wrote a couple of years ago called “Rhetorical Style.” It’s been published a couple of times, so it will pop up in Westlaw and Lexis. Here’s a quick link to one source: http://www.ncbar.com/Journal/journal_8,1.asp.
I respectfully disagree with you about “if and only if”. “If” refers to a sufficient condition; “only if” refers to a necessary one. A condition may be necessary without being sufficient and vice versa. Thus, using the two together is not redundant, and so not merely rhetorical.
For example, a number greater than two is prime “only if” it is odd. But it is not true that a number greater than two is prime “if” it is odd. Conversely, a number greater than two is odd “if” it is prime. But it is not true that a number greater than two is odd “only if” it is prime.
Patrick: I understand the logical distinction between “if” and “only if,” but I don’t think that has anything to do with “if and only if.” I find it helpful to think in terms of examples of contract prose rather than abstractions: I don’t believe that my using “only if” rather than “if and only if” in the fourth example in the original post affects its meaning. Ken