An Example of an Awkward Definition

A little birdy suggested that I should check out the definition of “Arbitrator” in section 12(a) of the agreement providing for Jeff Bezos’s acquisition of the Washington Post. (For more about that contract, see this post.)

Here’s the sentence in question:

If the Purchase Agreement is not executed within 60 days of the date hereof, the Seller and the Purchaser shall within 75 days of the date hereof submit to the first listed individual designated in Schedule 12(a) hereto (the “Arbitrator” (if such Arbitrator is unable to serve, the Arbitrator shall be one of the other individuals set forth on Schedule 12(a) hereto, designated in an order of precedence corresponding to the order in which the individuals are listed on Schedule 12(a) should the first listed individual be unable to serve)) this Letter Agreement, the most recent drafts of the Transaction Documents reflecting the status of the parties’ negotiations and a list of open issues and the written position of each party with respect to each open issue.

First you have a simple integrated definition that precedes the defined-term parenthetical. But the defined-term parenthetical itself contains another lengthy parenthetical that says that things are not as described in the integrated definition. So the definition is doubly awkward. First, it’s confusing to give the reader the definition in two parts. And second, the vehicle used for the second part—a parenthetical within a parenthetical—is particularly unwieldy.

So here’s my version (including some ancillary tidying up):

If by 60 days after the date of this agreement the Purchase Agreement is not signed by both parties, no later than 75 days after the date of this agreement the Seller and the Purchaser shall jointly submit to the first of those individuals listed in schedule 12(a) who accepts to serve as arbitrator, with those individuals being approached serially in the order listed (that individual, the “Arbitrator“), this agreement, the most recent drafts of the Transaction Documents reflecting the status of the parties’ negotiations, and a list of open issues and the written position of each party with respect to each open issue.

Although concision isn’t the primary goal, it’s a nice secondary benefit of clarity. My version weighs in at 104 words, compared to the 127 words of the original version, even though I added some words. (I added “jointly,” to make it clear that the idea is that the Seller and the Purchaser should act together rather than separately. I used “of this agreement,” to avoid the staleness afforded by “hereof”. And I added “that individual” to the defined-term parenthetical, to clarify the scope of the definition.)

By the way, why am I writing about this? Just because someone pointed the definition out to me. Otherwise, it’s the sort of thing one sees in countless contracts.

[Updated August 13, 2013: A reader sensibly asked whether it might be simpler to use an autonomous definition to define “Arbitrator.” Here how that would look [inspired by Uninterested Observer’s comment, I switched from the passive to the active voice in the opening conditional clause]:

If by 60 days after the date of this agreement both parties have not signed the Purchase Agreement, no later than 75 days after the date of this agreement the Seller and the Purchaser shall jointly submit to the Arbitrator this agreement, the most recent drafts of the Transaction Documents reflecting the status of the parties’ negotiations, and a list of open issues and the written position of each party with respect to each open issue. As used in this agreement, “Arbitrator” means the first of those individuals listed in schedule 12(a) who accepts to serve as arbitrator, with those individuals being approached serially in the order listed.

This version gets my vote. And at 108 words, it’s significantly more concise than the original. My thanks to the reader who suggested this approach.]

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

7 thoughts on “An Example of an Awkward Definition”

  1. I can’t seem to avoid putting in my oar today. Here it is in under 100 words:

    If the parties have not signed the Purchase Agreement within
    60 days after the date of this agreement, then within 75 days after the date of this agreement they shall jointly submit (i) this agreement, (ii) the most recent drafts of the Transaction Documents reflecting the status of the parties’ negotiations, and (iii) a list of open issues and the written position of each party with respect to each open issue, to the first individual listed in schedule 12(a) who accepts to serve as arbitrator, approaching those individuals serially in the order listed (that individual, the “Arbitrator“).

    Reply
    • I think it’s a bit awkward to put the “first individual” bit at the end. One sign of that is the extraneous (methinks) comma before “to.”

      Originally I planned to use “serially” but I thought that might be too fancy, so went with “one at a time.” On reflection, I reckon that people can handle “serially,” so I’ve made that change.

      Reply
  2. I’d further refine:

    If both parties do not sign the Purchase Agreement by 60 days after this agreement’s date, the parties shall jointly submit the Arbitration Documents to the Arbitrator by 75 days after this agreement’s date. “Arbitration Documents” means this agreement, the most recent Transaction Document drafts reflecting the status of the parties’ negotiations, and a list of open issues with each party’s position on each open issue. “Arbitrator” means the first of those individuals listed in schedule 12(a) who accepts to serve as arbitrator, with those individuals being approached serially in the order listed.

    Reply
    • I like your use of the active voice in the opening conditional clause. But I’d be reluctant to create your new defined term “Arbitration Documents” without knowing whether it would be of use elsewhere in the contract. (That’s something I’m too lazy to investigate.)

      Reply
      • I like UO’s version a lot. For one thing, it expresses the two time periods in parallel form.

        If you dislike using the defined term “Arbitration Documents,” then strike it and substitute “the following documents.”

        The comments on “serially” and “sequentially” miss the point that either word is redundant of “in the order listed.”

        The only way it may not be redundant is if the parties want to wait till #1 refuses or fails to respond before approaching #2.

        If that’s the intent, Ken’s original wording, “one at a time” is a vague wave in that direction, but I think more words are needed to give #1 a deadline before the parties move on to #2.

        Without deadlines, the Arbitration Papers could be submitted to #1 at 9:00 a.m., #2 at 9:01 a.m., and so forth, and the first one to accept the job gets it.

        Reply
  3. One could also say: [insert the “if the parties have not signed the purchase agreement” language], they shall jointly submit [the Arbitration Documents] to the Arbitrator as defined on Schedule 12(a).” And then the schedule 12(a) says “The ‘Arbtrator’ shall be Joe Smith, unless Joe Smith is unwilling or unable to serve, in which case the Arbitrator shall be one of the following persons [insert sequential concept]): …………….” This moves the sausage-making of selecting an Arbitrator away from the main text for clarity of reading. It conveys the basic obligation to arbitrate cleanly, and then lets a contract reader follow the rule on 12(a) to ID the arbitrator.

    Reply

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