Extraneous Language of Declaration

In contracts, language of declaration is used by parties to declare facts. And as I say in MSCD 3.270, “Language of declaration allows parties not simply to assert facts but to be seen to be asserting them—without the verb, it wouldn’t be clear who is making the assertion.” Language of declaration comes in two flavors, depending on whether the fact being asserted originates with the party making the statement or originates with the other party or both parties.

But the purpose of this post isn’t to rehash language of declaration. Instead, I simply want to point out that it’s routine for drafters to use language of declaration unnecessarily to introduce a provision that already has an appropriate verb.

Here are examples from a contract I examined recently (the language of declaration is in italics):

Supplier represents and warrants to the Company that Supplier and Supplier employees shall perform the Services …

Supplier represents that it will be responsible for processing unemployment and workers’ compensation claims involving Supplier employees.

Supplier warrants and agrees that it shall cause to be conducted third-party criminal background checks on each Supplier employee prior to their performing Secure Services ….

Supplier warrants that it assumes full responsibility for paying compensation to Supplier employees ….

Supplier acknowledges that it shall verify the Supplier employee’s identity and eligibility prior to assigning them to perform Services ….

Those five extracts demonstrate five different ways in which the drafter unnecessarily tacked on language of declaration at the beginning of a provision. The drafter used some of these verb structures multiple times, making for a lot of surplusage. In each case, the language of declaration should have been omitted.

This use of language of declaration is analogous to use of agrees that in the body of the contract, as in The parties agree that Acme shall ….

Posted in Categories of Contract Language | 3 Comments

  • http://www.lawnotes.com D. C. Toedt

    I suspect this sort of language comes from lawyers (or other drafters) who really don’t understand the differences between representations, warranties, covenants, and oh yes, declarations. I see that in my students; we spend a fair amount of time in class getting them straight on those differences.

  • JPS

    Hi Ken, (long time reader, first time commenter…)

    This reminds me of a separate issue I wanted your opinion on. In the example, the drafter states: “…Supplier and Supplier employees shall perform the Services….”

    Does it bother you to see the defined term “Supplier” used as an adjective? While I believe “Supplier and its employees” reads better, I have seen instances (none of which, I’m sorry to say, I have ready examples of) where using a defined term as an adjective or even an adverb is not only awkward to read, but also creates ambiguity. Do you have a general rule or guideline about that practice?

    Thanks,
    JPS

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

      Welcome to the comments! I’ll sidestep your question and instead point out that I wouldn’t use either version you suggest, as each attempts to impose an obligation on nonparties.

      I’ll ponder your defined-term-as-adjective question.