In MSCD 3.57, I use the term “frontloading” for the process of pulling select information out of the body of the contract and placing it at the top of the contract.
In MSCD 3.63 I acknowledge that instead of frontloading information, you could put it in a schedule. Some contracts—including one I’m reviewing at the moment—are aggressive about that, in that the body of the contract consists of three pages, with voluminious provisions being put in schedules.
This kind of arrangement would seem suited to companies that enter repeatedly into a given kind of transaction but each time adjust a broad range of provisions to reflect the exact nature of the deal. Think of the resulting contracts as mix-and-match contracts. I suspect that they’re used more often than is really warranted.
At any rate, I thought it high time that I give this phenomenon a name. I choose [drum roll, please] “backending.” What do you think?
I thought when I googled for “backending” I might end up with some really inappropriate sites. I was mildly surprised that I did not.
Just as we want parallel construction in our writing, doesn’t parallel construction dictate “backloading” or “endloading”?
Ken: For someone who likes clean language, selecting two almost-synonyms, “back” and “end”, and jamming them together, just seems a little dirty. :)
If putting the defs at the front is frontloading, then I think putting a bunch of terms in schedules at the end would be rearloading.
Mac, Jeff: In this context I think catchyness is more important than symmetry. Somehow, for me “backloading” conjures up inapposite associations. And as for dirtiness, I’m not sure what to say about “rearloading” :-) . By contrast, “back-end” is an established adjective, although in a different context. But I’m open to persuasion.
Jeff, note that putting the definition section at the front doesn’t constitute frontloading, which occurs when you put key provisions at the very top of a contract, generally in tabular form.
Ken
This might strike some as a solution in search of a problem ….
D.C.: I disagree. Giving a phenomenon a name is a first step in understanding how it truly works. And giving it a convenient label makes any analysis more readable. That’s why MSCD is full of terminology that I invented. Ken
A good word should be thought up for both “frontloading” and “backending”, as I am not sure that there is any difference in principle between the two – it seems little more than a question of how one shuffles one’s pages. Aesthetically, I think a nice metaphor would be beter than co-opting a noun/adjective (or certainly two synonymous ones) into a verb, but I’m no poet myself.
Either way, it is a useful concept. ISDA Master Agreements governing swap transactions are about 60 pages(?) of industry standard wording followed by 3 or 4 pages of terms that define how the agreement will work between those specific parties. This industry-wide approach will have saved untold amounts in legal fees over the years.
ISDA Master Agreements have a further efficiency – the related (but distinct) concept of the “framework agreement”. Individual swap transactions are all carried out in accordance with the overall, single ISDA Master Agreement entered into by the parties at the outset of the relationship. This is probably even better than frontloading/backending when repeating similar transactions between the same parties.
Art: Hmmm, you have a point. As I conceived it, “frontloading” refers to taking select deal terms from the body of the contract—price, product, term, and so on—and placing them at the top of the contract. By contrast, “backloading” refers to kicking entire provisions to the back. But as you note, sometimes you can have select provisions that are put at the back. I’d still like to use two different terms. Let me ponder. Ken