I’m back at Notre Dame Law School, teaching an intensive course in contract drafting—one semester crammed into just under three weeks.
As usual, the categories of contract language—my term for how verb structures determine function—is taking a lot of our time. To help my students become familiar with this topic, we looked at some problematic sentences and considered alternatives with more effective verb structures.
Here’s one of the more-effective alternatives we considered:
To dispute an invoice, Jones must submit a Dispute Notice no later than five Business Days after delivery of the related invoice.
This sentence is language of obligation used to express a condition. It features must (instead of shall), plus an introductory clause that makes it clear what the context is.
One of my students, Ryan Evans, wondered whether we could instead use language of policy, as follows:
A Dispute Notice submitted more than five business days after delivery of the related invoice will be void.
Language of policy is used to express the ground rules of a transaction, as opposed to provisions governing what parties have to do, may do, or are prohibited from doing. Ryan’s suggestion offered a useful reminder that to address an issue, often you have a choice from among alternative categories of contract language.
But invariably one category works better than others. For one thing, the sentence Ryan offered doesn’t mention the parties, so it’s one step removed from expressing what the dynamic actually is.
Furthermore, you’d have to add another sentence in front of it:
Jones may dispute an invoice by sending Acme a Dispute Notice. A Dispute Notice submitted more than five business days after delivery of the related invoice will be void.
Addressing this issue with language of obligation used to express a condition requires 28 words; using language of discretion plus language of policy requires 39 words.
So all told, the winner is … language of obligation used to express a condition. But this serves as a reminder that choosing between categories of contract language sometimes requires you to make a judgment call.
It’s not lucky to have a class of 13. Let me be the 14th.
At bottom, each of the following formulations gives Acme a duty that arises only if Jones does something she has no duty to do.
1/ ‘To dispute an invoice, Jones must give Acme a timely Dispute Notice’.
2/ ‘If Jones gives Acme a timely Dispute Notice, Acme shall process the dispute over any invoice identified in the Dispute Notice’.
3/ ‘Acme shall process the dispute over any invoice identified in a Dispute Notice that Jones timely delivers to Acme’.
4/ ‘Jones’s timely delivery of a Dispute Notice to Acme will trigger Acme’s invoice dispute resolution process for each invoice identified in the Dispute Notice’.
5/ ‘Jones may give Acme a timely Dispute Notice, which will trigger Acme’s invoice dispute resolution process concerning any invoice identified in the Dispute Notice’.
6/ ‘Unless Jones gives Acme a timely Dispute Notice identifying one or more disputed invoices, Acme is not required to entertain any invoice disputes’. [Cue expectation of relevance.]
For this comment, I’m defining ‘language of obligation’ as ‘language by which a party takes on a duty to another party or person’.
Each formulation above has the same function, does the same job, addresses the same issue, achieves the same drafting goal, expresses the same idea, and has the same meaning. They are all semantically equivalent. (Which one ‘works best’ in a given context is another question to which the answer depends on considerations other than its semantic content.)
That means, in part, that (a) although #4 looks like language of policy, it’s actually language of obligation, (b) although #5 looks like language of discretion, it’s actually language of obligation, and (c) although #6 looks like language of discretion, it’s actually language of obligation.
Some language of obligation gives rise to unconditional duties, and other language of obligation gives rise to duties that kick in only when a condition is fulfilled. Both kinds are members in good standing of the same category.
The first example above is an interesting case: ‘To dispute an Invoice’ is functionally the matrix clause that imposes a duty on Acme, and ‘Jones must give Acme a timely notice’ is functionally the conditional clause that tells what condition Jones must satisfy before Acme’s duty kicks in.
Ironically, the conditional clause contains the word ‘must’, which often creates a duty but here does not. Here, it helps create a condition to Acme’s duty.
So a semantic description of the whole sentence would be that it’s language of obligation of the conditional kind. A description of the conditional clause alone would be that it creates a condition using language often, but not here, used to create an obligation.
What your student #14 wants to know is, is the above MSCD orthodoxy or MSCD heresy? –Wright