Here’s another target in the battle against ponderous contract prose—the adjective applicable. I discuss below three different ways that it’s used in contracts.
“Applicable” Plus Noun
Sometimes applicable is used before a noun. It’s possible to use applicable appropriately in this manner:
The Company shall provide the Employee with pension and welfare benefits and group employee benefits such as sick leave, vacation, group disability, and health, life, and accident insurance and any similar indirect compensation from time to time offered generally to the Company’s executive personnel, subject in each case to the terms of the applicable benefit plan or program.
But often, as in the two examples that follow, applicable should be omitted, because it inappropriately suggests that the provision applies to a subset of a whole, whereas it in fact applies to the whole.
Recipient shall pay any
applicabletaxes incurred in connection with the Consultant’s performance of services under this agreement.Conveyance of the Mortgage Notes and the Mortgages by the Company under this agreement is not subject to the bulk transfer laws of any
applicablejurisdiction.
I’ve wrestled with using applicable in references to violation of, and compliance with, laws. In the following example, it would be a little odd to refer to any applicable law, as if Acme had perhaps violated some inapplicable laws.
Acme’s execution and delivery of this agreement and performance of its obligations under this agreement do not violate any
applicablelaw.
But what about the sentence Acme is in compliance with all applicable laws? I’m not quite as comfortable with deleting applicable, perhaps because you could conceivably elect to comply with a law that you’re not otherwise subject to. My preference would be to skirt that issue and rewrite the sentence to refer to Acme’s not violating any laws.
Even if a provision is referring to a subset of a whole, that can be a more succinct and precise alternative to the applicable. I’ve made that change in the following example, because each anniversary is being treated individually. I’m still uncertain which is the better choice; what do you think?
The Company shall pay the Employee a bonus of $33,000 not later than 30 days after each of the first three anniversaries of the Commencement Date, on condition that the Employee is employed by the Company on
the applicable[that] anniversary.
The Verb “To Be” Plus “Applicable”
Applicable is also used with the verb to be. Generally, you’d be better off using instead the verb apply—verbs good, adjectives and abstract nouns less good. (See MSCD 13.7.)
The provisions of this section 7.2 will
be applicable[apply] solely to work that the Tenant performs, or causes to be performed, before the Commencement Date.Any such modification or revocation will be effective upon receipt by the Advisor of notice of that modification or revocation and will not
be applicable[apply] to investment transactions to which the Advisor has committed the Company before the date the Advisor receives that notice.Any adjustment in the Applicable Margin will
be applicable[apply] to all Extensions of Credit then existing or subsequently made or issued.
“As Applicable”
The one use of applicable I can’t complain about is the phrase as applicable. It’s equivalent to, but a little more succinct than, the phrase as the case may be.
The terms of this warrant will apply to the shares of stock and other securities and property received on exercise of this warrant after consummation of that reorganization, consolidation, or merger or the effective date of dissolution following any such transfer, as applicable.
Very useful in Indian context where we take liberties with “applicable”. With Regards, V. Sounder Rajan, VS Rajan Associates, Chennai
I dislike applicable as a rule-of-thumb as well (‘applicable laws’ being the prime example), but have found a couple of places I couldn’t work around it (or at least where the alternatives were no more succinct). My favorite:
I have a client that is a player in a highly regulated industry — It is subject to compliance with a number of laws/regs that other ‘regular’ businesses would have no idea about or could argue that they had no obligation to comply with. Say, for example, my client is subject to regulations that require it to maintain the confidentiality of certain types of consumer information, which (in the absence of a contractual obligation) the other non-regulated party to the contract could freely disclose/use/mess with to its heart’s content.
We need to be sure that the third party’s actions in dealing with the consumer data won’t cause us to be violating our own ‘by law’ obligations.
Just saying that the other party has to obey all laws won’t help us, since that party has no obligation under the law. Alternatively, I could simply parrot in my contract with that other party what the law obligates me to do/not do. But, that doesn’t account for how the law might change over time, or be interpreted, etc. So, I’d like to tie the other party’s obligations to the law itself, albeit as a contractual obligation to me rather than suggesting he is directly regulated by those laws.
Thus, I use a phrase like: “You shall comply with all laws that are applicable to me.” (I might supplement that with examples, such as “including the obligations to maintain consumer privacy of a financial institution under the Gramm-Leach-Bliley Act.” But, I’m not even sure I’ve said what I want to say, since the other side might look at that and say “But, since I’m not a financial institution, I, by definition, comply with the GLBA by doing exactly nothing.” I’ve been reluctant to spell it out in as wordy a way as I’ve explained it above — There must be a better answer. Nonetheless, I’ve yet to come up with it.
(I suspect that if I tried to throw in the scary concept of Agency that it would get batted down, so I’ve not tried that route yet.)
Michael: I think your issue goes beyond “applicable.” I might say something like “In order to ensure that ___________, Acme shall handle all Consumer Information in the same manner as Widgetco is required to handle Consumer Information under the XYZ Act.” Ken
I think that applicable has meaning in the “applicable law” sense, but that may not entirely be obvious in the sense that most drafters think of it.
I deal with international transactions on a regular basis. It’s no secret different jurisdictions have differing laws in areas like labor standards. The problem arises where the parties are from different jurisdictions and neither wants to brush up on the business and regulation of their partner. Applicable, in this case, shifts the burden of applying the law to the party in the best position to know the law. This avoids the silly problem of “exhibits” regarding acceptable labor practices which may themselves be in violation of the law of non-drafter’s country.
Mike: I have no problem with “applicable” in the context that you mention, in that you’re referring to one of two alternative sets of laws. Ken