“Further”

Contract language differs from narrative, expository, and persuasive prose.

When the writer needs to tell a story, explain, or convince, one block of text picks up where the previous one left off. The reader is taken on a trip—jumping on board with the first sentence, hopping off at the end.

By contrast, a contract is made up of a set of rules. Together they make for a transaction, but no narrative thread connects them.

That’s why contract language has little use for the words used in other kinds of prose to knit blocks of prose together. Also. Therefore. Because.

Another such word is further, at least when it’s used to introduce a provision. I encountered this use the other day in a student assignment, in the phrase further represents. That phrase is illustrative of this use of further, so I took a closer look at it.

The phrase further represents is used when someone makes a representation, then makes another:

Each Lender represents that it has made and shall continue to make its own independent investigation of the creditworthiness, financial condition and affairs of the Companies in connection with the extension of credit hereunder, and agrees that Agent has no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto (other than such notices as may be expressly required to be given by Agent to the Lenders hereunder), whether coming into its possession before the first Credit Event hereunder or at any time or times thereafter. Each Lender further represents that it has reviewed each of the Loan Documents.

But it’s also used after something other than a representation. In such cases it means, in effect, In addition to the stuff you just read, we’re now going to make a representation!:

As an inducement to Agent and Required Lenders to execute, and in consideration of Agent’s and Required Lenders’ execution of, this Amendment, the undersigned hereby consent to this Amendment and agree that this Amendment shall in no way release, diminish, impair, reduce or otherwise adversely affect the obligations and liabilities of the undersigned under the Guaranty Agreement executed by the undersigned in connection with the Credit Agreement, or under any Loan Documents, agreements, documents or instruments executed by the undersigned to create liens, security interests or charges to secure any of the Obligation, all of which are in full force and effect. The undersigned further represent and warrant to Agent and Lenders that (a) the representations and warranties in each Loan Document to which it is a party are true and correct in all material respects on and as of the date of this Amendment as though made on the date of this Amendment (except to the extent that such representations and warranties speak to a specific date), (b) the undersigned is in full compliance with all covenants and agreements contained in each Loan Document to which it is a party, and (c) no Default or Event of Default has occurred and is continuing.

I recommend that you not use further represents. Each representation should be able to stand on its own, so using further to allude what has gone before accomplishes nothing. In fact, it’s a distraction.

When one representation follows another, use instead one of the following structures:

  • Acme represents X. Acme represents Y.
  • Acme represents (1) X and (2) Y.

And when a representation stands on its own, simply restrain any urge to tack a further in front.

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