A Possible Exception to the Rule that You Put Autonomous Definitions in Alphabetical Order

Warning: The following is for serious defined-term geeks only.

MSCD 6.18 says, “Put any set of autonomous definitions in alphabetical order.” I’d like now to suggest an exception that could apply when two or more autonomous definitions are placed “on site” in their own subsection (as opposed to being placed with other autonomous definitions in a definition section). But at the end of this post I explain why I can’t bring myself to use the exception myself, let alone recommend it.

First, I’d like to introduce the concept of “generations” of autonomous definitions. (I just invented it!)

If an autonomous definition is of a defined term used in a substantive provision, that’s a “first generation” autonomous definition. If an autonomous definition is of a defined term that’s used in a first-generation autonomous definition, that’s a “second generation” autonomous definition. If an autonomous definition is of a term used in a second-generation autonomous definition, that’s a “third generation” autonomous definition. (That should be enough.)

So here’s the exception: When in an on-site set of autonomous definitions only one of the defined terms is used in a substantive provision in a previous subsection and the other defined terms are used in the definition of that defined term, it makes sense to put at the top of that set of autonomous definitions the definition of the defined term used in a previous subsection, even if that means it’s out of alphabetical order. The rest would follow in alphabetical order, except that if only one of the autonomous definitions is a third-generation autonomous definition, it would go after the second-generation autonomous definition (or the first one, if there are more than one) that uses the defined term of the third-generation autonomous definition.

Why do this? Because the defined term of the first-generation definition is the only one readers will have encountered in the previous subsections. If you lead with one of the other definitions, readers might wonder why they’re relevant, at least until they get to the first-generation definition, lower down. The same applies with respect to where you put the third-generation definition.

But if you have more than one first-generation autonomous definition, things are sufficiently complicated that it would be best to stick with simple alphabetical order.

Here’s how this would play out in a contract I’m currently working on: In a section entitled “Cancellation by Acme,” subsection (c) contains the autonomous definitions of “Bankruptcy Event,” “Person,” and “Vendor Default.” The definition of Vendor Default is the one first-generation autonomous definition in that set, so it seems sensible to put it first, out of alphabetical order, since that’s the definition the reader will be looking for. The definition of “Person” is a third-generation definition, so it seems sensible to put it below the definition of “Bankruptcy Event,” the second-generation definition in which “Person” occurs. That happens to correspond to alphabetical order.

But the problem with this exception is that it’s too subtle. It’s inconsistent with the straightforward recommendation that you put your autonomous definitions in alphabetical order, and anyone who is familiar with that recommendation might well wonder why the heck a given set is out of alphabetical order.

And it’s perhaps not too much to ask of readers that they find for themselves the lone first-generation definition in a set of autonomous definitions.

I think I’ll now go lie in a darkened room …

Posted in Defined Terms | 1 Comment

  • AWrightBurkeMPhil

    Been at the adderall again? Joking aside, my only comment is to note that you devote loving attention to the ins and outs of definitions but turn an inexplicably cold eye to “drafting conventions” (the arm’s length quotes are because I would substitute the term “interpretive rules”).

    If the same time, focus, and intensity spent on definitions were spent on interpretive rules, the happy results would surely include concise and nifty solutions to several recurrent drafting issues, such as “including” and precise descriptions of points in time and periods of time.