Comments on: “Thereby” in Language of Performance? http://www.adamsdrafting.com/2008/10/02/thereby-in-language-of-performance/ Tue, 31 Jan 2012 01:23:03 +0000 hourly 1 http://wordpress.org/?v=abc By: Chris Lemens http://www.adamsdrafting.com/2008/10/02/thereby-in-language-of-performance/comment-page-1/#comment-66366 Chris Lemens Fri, 03 Oct 2008 15:51:14 +0000 http://www.adamsdrafting.com/2008/10/02/thereby-in-language-of-performance/#comment-66366 Wouldn't it make sense to think of this (minus the thereby) as language of policy? That is, we are determining the meaning of an act that occurs in the future. So, something like: Company hires Contractor to perform a project under this agreement by issuing a work order, service order, or purchase order (either orally or in writing). Or as language of discretion? Company may hire Contractor to perform a project under this agreement by issuing a work order, service order, or purchase order (either orally or in writing). Chris Wouldn’t it make sense to think of this (minus the thereby) as language of policy? That is, we are determining the meaning of an act that occurs in the future. So, something like:

Company hires Contractor to perform a project under this agreement by issuing a work order, service order, or purchase order (either orally or in writing).

Or as language of discretion?

Company may hire Contractor to perform a project under this agreement by issuing a work order, service order, or purchase order (either orally or in writing).

Chris

]]> By: D. C. Toedt http://www.adamsdrafting.com/2008/10/02/thereby-in-language-of-performance/comment-page-1/#comment-66296 D. C. Toedt Fri, 03 Oct 2008 02:24:14 +0000 http://www.adamsdrafting.com/2008/10/02/thereby-in-language-of-performance/#comment-66296 If the agreement is a master agreement, the parties' lawyers might not have wanted to have any 'hired' relationship come into being unless and until an actual order is issued. "Hereby hires" would defeat that. They probably should have phrased it as: <blockquote>From time to time <em>[I know you don't like that, Ken]</em> Company may issue one or more work orders, service orders, or purchase orders, either orally or in writing. If Contractor accepts any such order, then Company will be deemed to have hired Contractor • to promptly provide any products, materials, or supplies, and • to promptly perform any services, set forth in the Order. </blockquote> If the agreement is a master agreement, the parties’ lawyers might not have wanted to have any ‘hired’ relationship come into being unless and until an actual order is issued. “Hereby hires” would defeat that.

They probably should have phrased it as:

From time to time [I know you don't like that, Ken] Company may issue one or more work orders, service orders, or purchase orders, either orally or in writing. If Contractor accepts any such order, then Company will be deemed to have hired Contractor • to promptly provide any products, materials, or supplies, and • to promptly perform any services, set forth in the Order.

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