AdamsDrafting

August 10, 2006 “For the Avoidance of Doubt”

How’s this for a categorical statement: Never use for the avoidance of doubt.

Sometimes a drafter will use this phrase in a contract to introduce language that seeks to clarify preceding language, usually by indicating that something either falls within or is excluded from the scope of the preceding language. In this context, for the avoidance of doubt says, in effect, “excuse us if we state the obvious.”

And that obviousness would allow you simply to delete for the avoidance of doubt, because the language that follows doesn’t alter, in any meaningful way, one’s understanding of the preceding language. Consider, for example, the following provision, which I’ve revised so as to eliminate for the avoidance of doubt (deleted language is in strikethrough; new language is in brackets):

This arbitration agreement applies to all matters relating to this agreement, the RSU Agreement, and the Executive’s employment with and/or termination of employment from the Company, including without limitation disputes about the validity, interpretation, or effect of this agreement, or alleged violations of it, any payments due hereunder or thereunder and all claims arising out of any alleged discrimination, harassment or retaliation. For the avoidance of doubt, this [This] arbitration agreement does not apply to any dispute under the Indemnification Agreement.

When for the avoidance of doubt is used in this manner in a definition, you might want to tidy up the definition by making it a single sentence, as in the following example:

“Insider Shares” means all shares of Common Stock owned by an Insider immediately before the Company’s IPO. For the avoidance of doubt, Insider Shares shall not include [and excludes without limitation] any IPO Shares purchased by Insiders in connection with or subsequent to the Company’s IPO.

But at some point, it can be a little ridiculous to state the blindingly obvious. The immediately preceding example would seem a good example of that—instead you might want to strike the second sentence entirely.

Sometimes for the avoidance of doubt serves no purpose, in that the language that follows doesn’t refer to something that falls within or is excluded from the scope of the preceding language:

Nothing in this agreement gives to any Person other than the parties and their successors, the Owner Trustee, any separate trustee or co-trustee appointed under section 6.10 of the Indenture, the Note Insurer, the Swap Counterparty, and the Noteholders, any benefit or any legal or equitable right, remedy, or claim under this agreement. For the avoidance of doubt, the [The] Owner Trustee, the Note Insurer, and the Swap Counterparty are third-party beneficiaries of this agreement and are entitled to the rights and benefits under this agreement and may enforce the provisions of this agreement as if they were a party to it.

Sometimes for the avoidance of doubt is used as a wishy-washy alternative to having a party acknowledge a given fact:

For the avoidance of doubt, [The Seller acknowledges that] InvestBank has implemented reasonable policies and procedures, taking into consideration the nature of its business, to ensure that individuals making investment decisions would not violate laws prohibiting trading on the basis of material nonpublic information.

And often enough, for the avoidance of doubt serves as a low-grade and entirely dispensable form of rhetorical emphasis:

For the avoidance of doubt, nothing [Nothing] in this agreement gives Acme any rights to any of Pharmaco’s compounds or methods of compound synthesis, including the Pharmaco Product, the Pharmaco Technology, any Patent Rights owned, licensed or controlled by Pharmaco, or any Pharmaco Confidential Information.

The Executive will be responsible for paying any tax and employee’s national insurance contributions imposed by any taxation authority in respect of any of the payments and benefits provided under this agreement (other than for the avoidance of doubt any tax and/or employee’s national insurance contributions deducted or withheld by the Company in paying the sums to the Executive).

But even without the benefit of these examples, it’s clear enough from the clunky buried verb avoidance that for the avoidance of doubt is a turkey. (See MSCD 13.7 for more on buried verbs.)

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