Another Word to Keep Out of Your Contracts: “Especially”

This May 2009 post on AdamsDrafting lists a bunch of words and phrases that you should exclude from your contracts. Now’s not the time for a comprehensive updating of that list, but I will add a word that I encountered in a contract the other day: especially.

It occurs in 444 contracts filed on the SEC’s EDGAR system in the past year—often enough to make it worth commenting on.

Usually, especially is used to mean “particularly,” as in the following examples:

If the scope of work of a Work Order changes, especially the estimated timelines, then the applicable Work Order may be amended as provided in this Section 5.3(a).

Distributor shall not, for any reason whatsoever, disclose any of Taomee Network’s business secrets to any third party, especially Taomee Network’s competitors, failing which it will be subject to severe penalty and, if the circumstance is serious, legal liability.

If any party breaches the contract, especially under material breach, the breaching party shall compensate the other party 20% of the total contracted amount of the last one year.

The Sellers acknowledge that such information is of material to the Business, and will continue to be so after the consummation of the transactions contemplated herein, and that disclosure of such confidential information to others, especially the Company’s existing and/or potential competitors, or the unauthorized use of such information by others would cause substantial loss and harm to the Company.

To the extent to which the contributing Party is entitled to assert claims towards third parties under the contract on the contributed activities, especially claims under guarantees and warranties, it assigns such claims to STOXX as far as they relate to the contributed activities, or asserts such claims in the interest of, at the expense of and in favour of STOXX.

Executive’s obligations under Article III and Article IV of this Agreement (especially those relating to confidentiality, non-competition and non-solicitation) shall continue after his employment with the Company is ended, regardless of the nature or reason for such termination.

The problem with especially is that it’s used to indicate that with respect to a given provision, some subset of the universe to which that provision applies is particularly important. Necessarily, that denigrates the importance of the rest of that universe; that could could hamper attempts to enforce that provision with respect to the rest of that universe.

If you want to make sure that something falls within the scope of a given provision, you can do that in ways that are more neutral than by using especially. For example, through disciplined use of including (see MSCD 12.100).

Drafters also use especially to mean “specifically,” as in the examples below. Using specifically instead would represent a better choice.

This Plan shall be administered initially by the Board of Directors of the Corporation (the “Board”), except that the Board may, in its discretion, establish a committee composed of two (2) or more members of the Board or two (2) or more other persons to administer the Plan, which committee (the “Committee”) may be an executive, compensation or other committee, including a separate committee especially created [read created specifically] for this purpose.

The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially [read specifically] for the Work and shall deliver such bids, and a recap and summary of such bids, to the Architect and the Owner.

Posted in Uncategorized | 4 Comments

  • Paul Comeaux

    Ken,

       In your second set of examples, I read “especially” to mean “principally” or “chiefly.” I don’t think that “specifically” would be a good substitute in either example, because “specifically” limits the action of the verb to a single instance.

    • http://www.koncision.com Ken Adams

      Paul: You may well be right. That just reinforces that especially is the wrong word. Ken

    • Anonymous

      I read it as Ken read it, though obviously not everyone would – another reason not to use it!

      It is possible that the word is used in some of the examples in the first set because some drafters have an aversion to “in particular”, thinking (I believe) that it can be construed as creating an exhaustive list. I have come across this before – I don’t think it is an improvement.

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