August 27, 2009 Referring to FedEx and its Competitors
A standard way of giving notice under a contract is by overnight delivery by FedEx or one of its competitors. To articulate this notion, many drafters use the word courier, with varying degrees of specificity. For example, the phrase nationally recognized overnight courier occurs in 204 contracts filed on Edgar last month as Exhibit 10 material contracts. Another word used, but much less frequently, is carrier—the phrase nationally recognized overnight carrier occurs in only 12 contracts filed on Edgar last month.
I’ve pondered the merits of courier and carrier. The online dictionaries suggests that although courier does mean a person or company that delivers documents or small and valuable packages by hand, it also means a messenger who carrys diplomatic or other official documents, or a smuggler or spy carrying something secret or illicit. And the latter meanings are the ones that come to my mind first—when I think of courier, I think of Pheidippides and his ilk.
As for carrier, for our purposes it means a person or company that deals in the transport of passengers or goods. So it doesn’t convey any sense of urgency, but I suppose you’d get that with overnight. And it isn’t limited to goods.
So courier and carrier are OK, but they’re not great. I propose an alternative: overnight delivery by a nationally recognized express transportation company. I think it expresses only the intended meaning. And note that FedEx Express refers to itself as an express transportation company.
August 27, 2009 at 8:43 pm
[...] a completely unrelated note, I also enjoyed Ken Adams’ post in which he has decided to refer to companies such as FedEx as “nationally recognized express [...]
August 28, 2009 at 3:17 am
Why not just write “nationally recognized overnight delivery service?” Seems to do the trick.
August 28, 2009 at 9:10 am
Jeff: I’m splitting hairs here, but I think my wording better captures what FedEx is. And I’d rather state separately the “overnight” concept, so I can more easily use this wording in an international context, where you often need more than one day. Ken
September 3, 2009 at 12:42 am
I’m a long-time listener, first-time caller, but this touches upon one of my greatest drafting curiosities.
Why are concepts such as “nationally recognized” (or words of similar import) so prevalent in agreements? As a regulatory lawyer, my first question is always “recognized” by whom?
For example, I often wonder what is meant by being listed on a “recognized stock exchange” (which can be used, for example, as a trigger for an automatic conversion of preferred shares into common).
Is it the defined term under the Canadian Income Tax Act? Or the definition in the British Columbia Securities Act? Or am I being too technical in my approach, and all that is intended is simply a reference to a stock market that is “widely” or “generally” recognized as such (perhaps in an effort to ensure that a listing must occur on a “bona fide” stock market to meet the definition)? However, if that is the case, I confess to still wondering to whom I am to canvass—stock market professionals, members of the business community, the investing public generally?
In your example, what are you getting at by your inclusion of the qualifier “nationally recognized”? A courier company that is licensed as an “express transportation company” authorized to do business in each state? Or is it a more colloquial use of the phrase to connote a “real” courier company, or a “big” courier company, or a “reliable” courier company?
I guess I’m left wondering what additional steps I would need to take to satisfy your language beyond simply giving notice by “overnight delivery”.
And, on a side-note, I’m not even sure why it would have to be an “overnight” service. If I “courier” it to you via same-day service, why should that not count? Or if I miss the Fedex cut-off time and use World Courier (which offers an on-demand service) to deliver the notice in advance of the Fedex Express delivery time, have I still missed the boat?
September 3, 2009 at 7:59 am
Ron: I take your point about “nationally recognized.” Rather than anything more formal, my intention was to capture, in a casual way, the notions of “big” and “real.”
On reflection, I’m not sure that’s necessary, strictly speaking. I say elsewhere in my form of notice provisions that delivery is effective when the package is signed for. If a party decides that instead of FedEx Express it wants to use Joe’s Messenger service and the package is successfully delivered, no one has any reason to complain. If it turns out that Joe was unreliable and the package has mysteriously disappeared, then the notice won’t have been delivered. If the risk of loss is on the sender—and that should generally be the case—the recipient won’t be any the worse off as a result of the sender’s rash choice of messenger.
But there’s something to be said for encouraging efficient contract procedures. So instead of “nationally recognized,” how about “national”? An alternative would be to specify a company by name, but then you’d probably want to refer to any successor company and, in case the named company goes belly-up, any equivalent company. That’s probably more trouble than it’s worth.
(By the way, I find “recognized stock exchange” rather weird.)
As regards “overnight delivery,” how about the following: delivery by a national transportation company the next business day or sooner. The “or sooner” reflects your objection, while “next business day” reflects that as a general matter it would be meaningless to require overnight delivery of a package given to the transportation company on a Saturday.
Ken
October 1, 2009 at 1:53 pm
Here’s a further thought: When specifying delivery by a national transportation company, why refer to the timing of delivery? You deal with timing, perhaps by using promptly or by stipulating a number of days, whenever you refer in a contract to the need for notice in a given context. Ken