Getting Right the Temporal Aspect of Adjective Clauses

Consider the following, which relates to the consequences of Acme’s cancelling a purchase of equipment:

Acme shall reimburse the Vendor for reasonable expenses that the Vendor incurs in connection with manufacture of the Units being cancelled.

Hmm. Does that mean Acme has to reimburse only expenses incurred after cancellation? Arguably.

Now consider this:

Acme shall reimburse the Vendor for reasonable expenses that the Vendor has incurred in connection with manufacture of the Units being cancelled.

Hmm. Does that mean Acme has to reimburse only expenses incurred before cancellation? Sounds like it.

So I’m inclined to go with the following:

Acme shall reimburse the Vendor for reasonable expenses that the Vendor incurs before and after cancellation in connection with manufacture of the Units being cancelled.

 

Posted in Drafting as Writing | 4 Comments

  • Vincent R. Martorana

    Ken,

    Suppose that the Vendor has incurred costs of manufacturing the Units prior to the effectiveness of the contract in which the provision in contained. Query whether there is a risk that “incurs” picks up costs incurred before the cancellation, but not before the contract was signed. If so, then perhaps: “…that the Vendor incurs or has incurred before, and for reasonable expenses that the Vendor incurs after, cancellation…”

    -Vinny

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

      If the Vendor has incurred expenses even before the contract is signed, it might be best to address that in the contract.

  • Westmorlandia

    Are we assuming that this clause is in the document that effects the cancellation? If so, I agree. (If not – and the clause is in the original agreement, before any costs have been incurred in connection with cancellation – I confess I don’t see the problem with the first option.)
    A concise approach might be to use a participle: “…expenses incurred by the Vendor in connection with…”. This avoids committing to any tense, as expenses are “incurred by the Vendor” whenever they have been incurred. There might, though, be a risk that someone will decide that a particular tense is nevertheless implied (e.g. that it is supposed to be read as “already incurred” or “yet to be incurred”).
    I sometimes see “…that the Vendor shall have incurred…”. This winds me up no end. It is grammatically unconventional, certainly, and I think grammatically wrong.

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

      The reference it to future cancellation. Regarding the first option, it leaves room for a fight, and I want to avoid fights. I think that “incurred” faces the same problem as my second option.