Comments on: “Consecutive Months”

By: Gregory Harris

Gregory Harris — Fri, 21 Nov 2008 04:00:06 +0000

I don’t see many posts or comments about provisions relating to time, so I’m putting my comment here in the most nearly related thread.

In my office, when periods of time such as appeal periods are in question, we often talk about “day zero” and “day one,” as in “the date of issuance of the decision is day zero. The next day is day one of the appeal period.”

I wonder whether this vernacular might have a useful place in contracts. For example:

“Doe shall give Roe not less than 20 days Notice of a proposed sale of a Lot. The date of the proposed sale will be [deemed] day zero, and the date of mailing Notice will be [deemed] day 21.”

That example excludes both terminal days. The terminal days could be easily included by calling the mailing date “day 20″ and the sale date “day one.” The point is, either way is pellucid.

It’s also more compact than saying, “For example, the last day for timely mailing of a Notice of a proposed October 31 sale of a Lot would be October 10.”

Use of “day zero” nomenclature would make harmless otherwise potentially ambiguous formulations like “no less than 20 days before” or “within 30 days after” a date or event.

By: Ken Adams

Ken Adams — Wed, 01 Oct 2008 14:31:39 +0000

Paul: In your example, I think that “continues” tells the reader that the provision applies only in the event of five days of uninterrupted interruption, if you see what I mean. But it’s best not to leave such questions open to interpretation, so perhaps I’d use consecutive. Or I might restructure the provision; it’s hard to say without seeing the entire provision. Ken

By: Paul Comeaux

Paul Comeaux — Wed, 01 Oct 2008 14:17:53 +0000

Ken,

I’m not quite sure I agree with the statement “if you’re referring to a period of time before or after a point in time, consecutive is redundant.”

Take this provision about interruption in building services in a lease: “If such interruption continues for more than five consecutive days, [Tenant may exercise remedies].”

I want to avoid the a tenant telling me that the power was out for 3 days, then came back for a day, then was out for 2 more days–so now they can exercise remedies. This concerns me because if I were a tenant, it’s exactly the argument I’d make. I might not make this argument if power were out 3 days in October and another 2 in December. But if the period between power outages were short, I’d make this argument, even if I knew that it was more of an equitable than a technical argument–and a smart landlord would compromise with the tenant on this. The word “consecutive” in this instance helps the landlord avoid this issue.

Having said this, I agree with you about “consecutive” being redundant. I just think that after writing a clear, well written provision, it is sometimes appropriate to make a conscious decision to add a redundancy, if there is a compelling reason to do so.

By: Chris Lemens

Chris Lemens — Mon, 29 Sep 2008 14:20:30 +0000

I hope that the only time I use “consecutive months” is in a service level description, where I set some payment or termination option based on something like “failure in (a) any three months in any six-month period or (b) any two consecutive months.” The point there is to emphasize the distinction between the two measurements.

Chris