Today I noticed the following tweet by @ronfriedmann:
Example of bad lawyer contract drafting. Is answer #DoLessLaw or #DoMoreLaw? pic.twitter.com/pmifezzDZ0
— ronfriedmann (@ronfriedmann) January 15, 2016
The quoted contract provision—and yes, it’s craptastic—caused me to don my full-face respirator and scurry to EDGAR, where I found lotsa contracts that use between or among the parties and variants. Here’s one:
This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.
Why did I bother? Because previously I’ve considered between and among only for purposes of the introductory clause. (MSCD 2.46–.48 explains why distinguishing between between and among in that context is one of the great red herrings. Instead, use just between, but if someone insists on among, don’t waste time debating the issue.)
I haven’t considered instances of between or among. So here goes:
Ground zero for fights over between versus among is wills. If a will says, “My estate is to be shared between my children and Sally,” there’s a good chance that sparks will fly as the children and Sally fight over whether use of between means that the children get half and Sally gets half. Traditionalists would say that it does, whereas among would result in the children (let’s assume there are two of them) and Sally each getting one-third.
Use of between or among in a contract is presumably intended to preclude any such arguments. Three comments:
First, it would require the most sterile form of literalmindedness to insist, for purposes of an “entire agreement” or other provision in a contract with three or more parties, that between the parties means the provision applies only to contracts between two of the parties.
Second, the provision I quoted is from a contract between only two parties, eliminating any possible between-versus-among debate. That sort of glitch is to be expected in a copy-and-paste world.
And third, here’s a simple way to avoid any between-versus-among nonsense in a contract with more than two parties: say between two or more parties. End of discussion.
Whenever the craptastic example you quote is short, there’s less excuse for discussing the fix for just one aspect instead of running the whole thing through the MSCD-o-matic. Here’s my go at the tweeted example:
This agreement and agreements the parties sign under this agreement supersede any course of dealing between one or more parties. No delay in exercise waives any right of a party under any such agreement. (From 52 words to 34.)
I wish it were as easy to lose weight personally as it is to lighten these dreadful specimens you find.
If I chased every squirrel that ran in front of me, I’d get nothing done!
Good point. Please continue to pick your squirrels.
But I like chasing squirrels, say Rufus.
‘Not many in here, though”, he adds Rufully.
AWB:
Two things.
How can you have a course of dealing between just one party? Surely, you meant “two or more parties,” but your MSCD-trained mind supplied the more familiar stock phrase?
You have something like hypallage in your second sentence. Delay is not a person, so can’t waive anything. The proper subject of the verb waive is a party. So maybe, “By delay, no party waives …”? Or else you can resort to nounification and say “No delay … is a waiver ….”
Chris
Chris: I gleefully concede the first point — excellent catch! Not sure about the second — must meditate and pray over it — but assuming it needs a fix, how’s this revised version?
‘This agreement and agreements the parties sign under it supersede any course of dealing. No party to any such agreement waives any right by delay in exercising it.’ (29 words!) –Wright