Comments on: “Irrevocably”

By: Ken Adams

Ken Adams — Thu, 29 Oct 2009 21:05:09 +0000

Euan: My starting point isn't specific caselaw but rather the general consensus as to the meaning of, for example, waiver and release. As regards the downside of adding irrevocably to that which is already irrevocable, it muddies the waters. As regards the ostensible benefits, I'd be interested to have someone direct me to recent caselaw in which someone claimed that although they had waived a right or had released someone from an obligation, one is as a general matter entitled to reverse a waiver or release. And in what context are you going to use irrevocably? Some of the uses I cite are less reasonable than others. But note that I haven't entirely made up my mind about this issue. After all, I've only just become aware of it. Ken

By: Euan Taylor

Euan Taylor — Thu, 29 Oct 2009 20:34:27 +0000

Ken – you cite caselaw but we all know caselaw changes, judges often distinguish it, and it varies from country to country. Since the lawyer is the first person to blame when something goes wrong, rather than arguing something like this out in court somewhere, I would still say “irrevocably”. I dont see any risk in using it but there is a potential risk in not doing so.

By: Ken Adams

Ken Adams — Thu, 29 Oct 2009 13:42:47 +0000

Richard: Your question touches on a distinction that I'll be blogging about shortly. Using instead shall not (which I prefer over may not; see MSCD 2.151) would doubtless work, but it misses a nuance. In the example in question, it isn't that the borrower is prohibited from directing the bank; instead, the borrower doesn't have the power to do so. Ken

By: Ken Adams

Ken Adams — Thu, 29 Oct 2009 13:15:13 +0000

D.C.: I acknowledge that avoiding a fight is much preferable to prevailing in a fight. But as usual, you have to weigh the risks. Regarding waiver, the authorities are clear as can be that a waiver of a right is inherently irrevocable. And in a quick scan of the caselaw I didn’t see any sign that it’s something that people are inclined to fight over. So I’m comfortable that the benefits of omitting irrevocably outweigh any risks. Ken

By: Richard Schafer

Richard Schafer — Thu, 29 Oct 2009 12:57:19 +0000

Ken, why would you suggest replacing “irrevocably waive the right to” with “is not entitled to,” when “may not” seems to work just as well and is more direct and simple?

Unfortunately, however, I think D. C. hits the nail square on: without any express disclaimer of revokability, someone somewhere will surely argue for it. And might succeed.

By: D. C. Toedt

D. C. Toedt — Thu, 29 Oct 2009 03:15:03 +0000

The problem, Ken, is this: Suppose the contract is silent on revocability. Sure as shootin’, some litigator will argue that, under the circumstances, his poor, maltreated client has an inherent right to revoke, because otherwise it would just be so … unfair.

That’s one reason contracts are so long: because the drafters feel they have to expressly negate things that shouldn’t have to be negated in the first place.

By: Ken Adams

Ken Adams — Thu, 29 Oct 2009 02:22:13 +0000

Chris: I actually have in mind looking at the adjective irrevocable, as opposed to the adverb irrevocably, in a future blog post. I've previously considered in this August 2008 blog post use of irrevocable in granting language. Ken

By: Chris Lemens

Chris Lemens — Thu, 29 Oct 2009 02:15:08 +0000

Ken:

Licenses are another good place to say irrevocable. Licenses can be term or perpetual, and even perpetual can still be terminable. So, it’s good to say irrevocable if the licensor can’t take it back; and it’s good to say it is terminable or revocable if it is.

Chris