Footnoted thinks that in each instance the intended figure was $87,500, and it suggests that as long as the executive doesn’t attempt to collect $175 million from the company, the error “seems more likely to elicit laughter, rather than heart failure, in the board room.”

Footnoted’s account caused me to consider the implications of typographic errors—typos—in contract drafting.

But first, what is a typo? I think the definition offered by The Free Dictionary is OK: “An error while inputting text via keyboard, made despite the fact that the user knows exactly what to type in. This usually results from the operator’s inexperience at keyboarding, rushing, not paying attention, or carelessness.” Excluding glitches that are due to the drafter’s coming up with the wrong words means that, for example, an instance of inadvertent use of less instead of more, as described in this August 2008 blog post, is best considered not a typo but rather a different kind of mistake.

So here’s my taxonomy of contract-drafting typos:

First, some typos are clearly typos, in that the result makes no sense. Of the 787 “material contracts” filed on EDGAR that contain the word pubic, in only a tiny proportion was the word used intentionally. (For example, I spotted one reference to “pubic bone.”) Other instances constitute examples of a typo beloved of adolescents of all ages, pubic for public—hence “initial pubic offering,” “pubic announcement,” “pubic utilities,” and the like. Because the nature of the typo is so apparent, it’s inconceivable that it would ever provoke a fight. Of course, even more clearly the result of a typo are those collections of characters that don’t even constitute a word, as in—to invent an example—blg, blgo, or bloog for blog. Whether you can decipher what the parties intended depends on the nature of the typo.

Second, you have typos that don’t render text nonsensical but would result in a ludicrous outcome if taken at face value. Offering an executive $175 million in relocation expenses would fall into this category.

Third, you have typos that create an alternative meaning that makes sufficient sense that a contract party is willing to argue that in fact there was no typo. For example, in a contract between a union and an employer, the employer agreed to comply with the union’s collective bargaining agreement and any changes “herein.” In subsequent litigation, the trustees of the union’s pension fund argued that ”herein” should have been “therein”; the employer argued for “herein.” See Calhoun v. Bernard, 333 F.2d 739 (9th Cir. 1964). If in cases such as this the party claiming typo prevails and the other party convinces the court that it hadn’t been aware of the typo, the court may well hold that there was no valid contract, on the grounds that there hadn’t been a meeting of the minds.

And fourth, you have typos that don’t result in text that is nonsense or ludicrous, but nevertheless the typos are subsequently readily identified as such because it can clearly be established that both parties knew at the time of signing what the text should have said. A good example of this kind of typo is how, in a mortgage prepared in 1986, the principal amount was erroneously stated as $92,885 rather than the correct amount, $92,885,000. (Of course, a secretary was blamed; I suspect that she was the fall guy. And in any event, many lawyers at different organizations missed the typo.) The sad story is recounted in this 1991 New York Times article.

You’d think that the fourth kind of typo would, like the first and second, be essentially benign. But circumstances can result in that being far from the case. In the mortgage example, one of the lenders felt compelled to give the borrower $11.4 million to drop its claim. And the lender estimated that after adding in its other expenses, the typo had cost it $31 million.

Of course, these musings have no bearing on how you avoid typos. For that, your only defense is … proofreading! (For more on that, see this January 2009 blog post.)

Contracts contain no shortage of examples of rhetorical emphasis; you can find my previous posts on the subject by using the site’s search function. But every so often I’ll spot an example that’s new to me. Today, it’s each and every. I spotted it in the following toxic lead-in to a set of representations:

Each Contributor hereby makes the following representations, warranties and covenants (in each case on his or her own behalf and not on the part of or with respect to any other Contributor), each of which is material and being relied upon by the Operating Partnership, each and every one of which is true, correct, and complete, as of the date of this Agreement (unless they expressly provide for a future date), and will be true, correct, and complete as of the Closing Date.

I’d put each and every at the hectoring end of the rhetorical-emphasis spectrum. It’s redolent of sermons, sales pitches, and earnest political invective. Keep it out of contracts.

It’s in widespread use in legal circles—a search of Westlaw’s “tp-all” database retrieved over 3,500 items that refer to “magic words.” But generally it’s used to convey a meaning rather different from the one I intend. In the following definition, which I just cobbled together (and will be tinkering with), the first meaning is the general meaning, and the second meaning is my own.

magic word, n. 1. A word required to be used in a legal document, as opposed to any one or more other words conveying broadly the same meaning, in order for that document to be legally effective to accomplish the related purpose. 2. A jocularly pejorative term used with respect to the meaning attributed in legal circles to a word used in contracts, if that meaning is (1) significantly different from any meaning that likely would be attributed to that word by clients and many lawyers or (2) is otherwise sufficiently at odds with everyday usage as to create a likelihood of confusion.

And here’s some related terminology:

magic-wordery, n. The act of treating certain words as magic words for purposes of contract interpretation <During our negotiations, I could rely on Timmins to trot out some predictable magic-wordery>.

magic-worder, n. One who engages in magic-wordery <Watch out for Timmins, he’s a true magic-worder>.

magic-word, vb. To engage in magic-wordery <Timmins magic-worded me to death over his “best efforts” provision>.

It’s clear from this terminology that I’m not a fan of magic words. In particular, this “On Language” column in the New York Times notes how the suffix -er has become a useful way to turn a simple noun into “a handy partisan put-down.”

But if you think this terminology is directed at you, please don’t take umbrage. I’d like to think I can poke fun at a pernicious practice without offending individuals. In other words, Don’t hate the playa, hate the game.

Professor Alaka notes that “many, if not most, legal writing instructors have been surprised by the sometimes astounding lack of basic writing skills exhibited by a few of their students.” Is this something new? The following quotation in the article (taken from this article [pdf copy]) suggests that to some extent it is: “Widespread cultural changes, resulting in overall declining student writing levels and reading efforts, will likely affect incoming law student preparedness for law schools at every tier level.” But as Professor Alaka notes, Derek Bok (the former president of Harvard) says that “freshmen have never arrived at college with impressive writing skills” and that about 25 percent of Harvard freshmen in the 1890s were deemed poor writers ill-prepared for college coursework.

So I don’t agonize over the causes of current writing standards; all I know is that what I read and hear suggests that they’re a cause for concern. (To hear some people talk, being a legal writing instructor is akin to engaging in trauma triage.)

I got to wondering how this plays out for contract drafters. Would the same kind of remedial work be required to turn the current crop of law students into accomplished drafters? In other words, does clear drafting require the same kinds of skills as other kinds of writing (descriptive, expository, narrative, persuasive)?

In that regard, I have some good news and some bad news.

The good news is that because contract drafting seeks to regulate conduct, it’s more limited and stylized than other kinds of writing. For example, it offers a limited range of verb use, a limited vocabulary, and generally seeks to accomplish a limited range of goals. So you don’t have to be Proust to be an excellent contract drafter. Instead, you have apply to language the mindset of a software engineer—one with some creativity!—and you have to follow the rules.

But the bad news is that if you screw up in drafting a contract, the consequences can be vastly more traumatic than in other kinds of writing: in a contract, every provision serves a function; the stakes are high; the future is uncertain; and the parties can be expected to leap on anything that works to their advantage. By contrast, other kinds of writing are generally much more forgiving.

Those factors operate as a carrot and a stick on those learning to draft contracts: Consider yourselves lucky that you’re dealing with a more manageable kind of writing. And be sure to take advantage of that, because there’s a lot riding on your command of contract language.

My first instinct was to assign this to the wrong side of the litigation-transactional divide. But drafting is subject to general principles of good legal writing, one of which is that you’d be advised to restrain yourself from succumbing to the lawyer urge to give an initial capital to anything that’s important. Any kind of writing benefits if the writer follows established guidelines, and when it comes to capitalization, for purposes of writers located in North America the authority to follow is The Chicago Manual of Style. It advocates a “down” style—”the parsimonious use of capitals.”

In that spirit, note what isn’t capitalized in the following:

• issued by the secretary of state of the state of Delaware
• the bank account specified in schedule 2(e)
• sale of units of Product under this agreement
• signed by the president of Acme Technologies, Inc.
• as defined in section 6(c) of the merger agreement between Acme, Widgetco Acquisition, Inc., and Widgetco Technologies, Inc.

Those of you who are outside of North America, what authority do you consult on matters such as capitalization?

I encountered one such issue yesterday, when I received the following email from a reader:

I was wondering whether there is any difference in meaning between (A) “opt not to apply” and (B) “opt to not apply.” I was wondering if you could (or should) opt for (B), if you wanted to make the point that you deliberately decided to forego the application. You have any views on this? Many thanks.

I replied as follows:

Here’s what The New Fowler’s Modern English Usage 530 (3d ed.) has to say:

Not is routinely used before a to-infinitive, negating all that follows it: … She tried not to watch Oscar count out his farthings …. But, not uncommonly, not is placed between (‘splits’) the to and its infinitive: … It was wrong to not love them …. This ‘unprincipled’ placing of not is presumably intended to give additional emphasis to the negativity.

In the limited and stylized world of contract drafting, where you put the not doesn’t affect meaning. But to avoid antagonizing those who make a fetish of not splitting infinitives, I’d put the not before the to-infinitive.

The Stories of English

I took the opportunity to read what Crystal has to say about “doublets,” which I also refer to as redundant synonyms. (I’d previously read David Mellinkoff’s Language of the Law on this subject.) In panel 7.4, Crystal notes how during the thirteenth century French replaced Latin as the primary language of legal expression and how during the fifteenth century law French was gradually replaced by law English.

He goes on:

The problem was: how can tradition be respected yet precision maintained when there are three languages competing for attention? It is plain that lawyers spend a great deal of their time worrying about the precise signification of words …. So what words should be chosen when Latin, French, and English each provide a copious supply of relevant items? How does one choose between synonyms, or—even more difficult—between two words which seem to be synonymous, but which might just have enough differential meaning to allow a lawyer one day to make an argument based on the difference?

The solution in many cases, was: don’t choose; use both. In Middle English we see the rise of the legal lexical doublets which would become one of the stylistic hallmarks of that profession. Old English goods and Old French chattels resulted in Middle English legalese goods and chattels. The words were often paired to cover distinct nuances, thereby avoiding ambiguity; but sometimes the pairing seems to be no more than a more emphatic expressing of a single meaning; and sometimes it seems to be just a stylistic habit, perhaps fostered by its undoubted rhythmical appeal in oral performance. But whatever the reason, it became a major feature of legal style which continues to the present day.

Crystal provides examples of doublets, triplets, and even quadruplets. He notes that it wasn’t long before the habit of doubling became extended to pairs of words regardless of their language of origin. For example, in null and void, both words are French; in have and hold, both words are English.

What bearing, if any, does this have on contract drafting?

Well, we no longer have to worry about a readership versed in Latin and Old French. On the other hand, English is now in flux in a different way, that it has become the lingua franca for business the world over. Drafters are called on to articulate, in English, concepts originally articulated in different languages for purposes of different legal systems. But that’s an issue for translators; it’s not likely to be resolved through use of redundant synonyms.

Of course, one issue Crystal refers to remains relevant: sometimes it’s advisable to use two words because the two words don’t constitute synonyms but instead have overlapping meanings. That’s the only legitimate use for doublets or triplets.

But what I take from Crystal, and from Mellinkoff before him, is that doublets and triplets serve primarily a rhetorical function. That’s why they remain a prominent feature of contract prose, and that’s why lawyers continually invent new redundant synonyms.

In that regard, I enjoyed what Crystal has to say about have and hold:

But have and hold requires a further comment: it reminds us that lexical coupling is an ancient English stylistic tradition. Heold mec on hæfde Hreðel cyning, reminisces Beowulf (l. 2,430)—”King Hrethel had and held me” (i.e., looked after me). The rhythmical appeal of lexical doubling has well-established historical roots.

Consider the following provision:

During the term of this agreement and the following 24 consecutive months, the Consultant shall not …

In this context, the word consecutive is redundant. The same applies to use of consecutive with other units of time.

But consider this provision:

The Employee shall spend two months every year in Acme’s Budapest office.

The employee could elect to spend one week a month in the Budapest office each of the first eight months of 2008 and presumably be in compliance with that obligation.

So if you’re referring to a period of time before or after a point in time, consecutive is redundant. But if you’re referring to a period of time within a larger period of time and you want the shorter period of time to be treated as one block, you should use consecutive.

Here’s the one thought that came to mind: In contracts, I use semicolons between integrated enumerated clauses when they’re preceded by a colon and between tabulated enumerated clauses; between the elements of a compound section heading; and between two “stacked” integrated definitions in a single defined-term parenthetical. Otherwise, I don’t use them.

For one thing, I’ve dispensed with archaisms that are traditionally associated semicolons, such as provided, however, that, and use of WHEREAS in recitals.

And more generally, semicolons are creatures of nuance—less than a period, more than a comma. A contract isn’t the place for nuance.

But fans of semicolons shouldn’t despair: even with the limited use I put them to, my contracts still end up containing quite a few of them.

For some reason that I’ve since repressed, I didn’t use contractions in MSCD. So for the second edition, I’m now adding them in wherever I think appropriate. Here’s a representative example of what that amounts to:

If you need to create a defined term for a definition that is that’s unique to a particular transaction, use a term that is that’s concise yet informative. Sometimes you will not won’t be able to avoid creating a defined term that is that’s a little long-winded, such as the PLM/Whitman Excluded Asset Proceeds.

I hope you agree that the effect is salutary.

But the reason for this post is that retrofitting contractions into my prose reminded me how last year, at a conference, I heard an expert on legal writing recommend that one use contractions in contracts.

Now I’m all for contractions in insurance policies or car rental agreements. But business contracts? I think not. Contract prose is like computer code—it’s devoid of tone or life, unless it’s poorly done, in which case can be redolent of pomposity. So the idea of using contractions in business contracts to achieve a natural, conversational rhythm seems bizarre.

Any thoughts?