“As Amended”

An abandoned blog can be mildly poignant. Everything is as it was when the proprietor up and left. It’s like encountering the Mary Celeste.

This thought came to mind when I rediscovered Corp Law Blog, which Mike O’Sullivan, a partner at the Los Angeles office of Munger, Tolles & Olson, posted to between May 2003 and October 2004.

More specifically, what caught my eye was this post on the phrase as amended. It’s a topic that I’ve cheerfully evaded lo these many years. It’s high time that I tackled it.

The phrase as amended can be used in a contract to modify references to statutes and to other contracts. It occurs in different categories of contract language. For example:

  • Language of obligation: Acme shall comply with the Securities Act.
  • Language of representation: Acme has complied with the Securities Act.
  • Condition expressed using language of policy: that Acme has complied with the Securities Act.

It’s standard practice for drafters to tack on as amended after each reference to a statute or other contract, the idea being to ensure that at any given time compliance is measured against the statute or agreement as it is then in effect.

But adding as amended serves no purpose: compliance with a statute or a contract could only be measured against the statute or agreement as it is then in effect, even without as amended.

If in an agreement dated November 3, 2007, you say that since January 1, 2000, Acme has complied with the Securities Act, it would be unreasonable to interpret that to mean that throughout that period Acme complied with the Securities Act not as then in effect but as in effect in 1933 or on the date of the agreement. You can’t comply with a version of a statute that no longer exists or a version that has yet to exist.

And if in that same agreement you say “Acme shall comply with the Securities Act,” it would not be reasonable to interpret that to mean that thereafter complying with the Securities Act as in effect in 1933 or on the date of the agreement, regardless of any subsequent amendments, would satisfy that obligation. Again, you can’t comply with a version of a statute that no longer exists.

But a contract might also refer to a statute or another contract not with regards to compliance but instead in order to allude to an element of that statute or contract.

For example, a contract might refer to a term as it is defined in a statute or other contract. If the intent is to freeze the definition as it is on the date of the agreement, then refer to the statute or other agreement “as in effect on the date of this agreement.” If the intent is to incorporate any future amendments to the definition, then you’d best refer to the statute or other agreement “as in effect at any given time.” (Simply saying “as amended” doesn’t serve to specify the time that you’re referring to. Saying “as amended from time to time” wouldn’t represent much of an improvement—from time to time means “once in a while,” whereas any given amendment could be immediately followed by another. And saying “as in effect” makes more sense than “as amended,” as at the time in question a give statute or contract may not have been amended.)

So when in a contract you’re alluding to an element of a statute or other contract, make it clear whether you’re referring to the statute or other contract as in effect on the date of the contract you’re drafting or as in effect at any given time in the future. But when referring to compliance with a statute or other agreement, don’t follow the herd by tacking on as amended.

I ran my analysis by Mike O’Sullivan. He agreed that as amended, by itself, serves no purpose: “It’s yet another manifestation of our fetish for false precision. The premise—without ‘as amended,’ we would be referring to the original version of the statute—is so absurd only a lawyer could think of it. The supposedly clever drafting solution—automatically appending ‘as amended’ to every statute name—turns out to be no solution at all, as you illustrate.”

And I also took the opportunity to ask Mike what it felt like to have been in the vanguard of legal blogging and then packed it in. His response: “I haven’t packed it in, it’s just taking longer than usual to draft my next post. I expect to reemerge at some point in some form in some place, but apart from that I can’t give you anything definite right now. And as for being in the ‘vanguard,’ I wouldn’t know. Broc Romanek’s blog at The Corporate Counsel single-handedly defined the genre, so I consider him a vanguard of one. The rest of us are just camp followers. Broc’s blog is the Ur-corp law blog; next to it mine’s merely the Uruk-corp law blog or the Kish-corp law blog.”

Posted in Uncategorized | 2 Comments

  • Vi

    I was recently reading an article on amending contracts that suggests that when amended a contract, a drafter should include an amendment that changes the definition of the original agreement to “the agreement, as amended” (if, of course, it is not already defined this way. The author say that without making this change, any provision in the original agreement that says “this Agreement” will refer only to the original agreement and not the agreement as amended.

    Does this rationale on statute amendments apply? The theory seems the same to me, how can one comply with the original agreement since it no longer exists in the sense that it has been amended? Thoughts anyone?

  • Ken Adams

    Vi: The suggested amendment would be pointless: given that the contract has been amended, any reference to “this agreement” necessarily refers to the agreement as so amended. Ken