At last week’s seminar in Sydney, one of the participants asked me about the phrase however so described. I told her that I’d look into it; she probably didn’t expect that it would lead me to another way to handle redundancy.
Redundancy has two sources. There’s what I’ll call rhetorical redundancy: when you throw in synonyms or near synonyms just because it makes contract prose seem less drably practical. (See this 2009 post for my discussion of this “ancient English stylistic tradition.”)
But another source of redundancy is concern over whether the label I use to describe something in a contract covers something outside the contract that’s essentially equivalent but to which a different label is applied. I think that concern is at the root of the string of nouns in the following definition, which is from an Australian contract (italics added):
Authorisation includes any consent, authorisation, registration, filing, lodgement, permit, franchise, agreement, notarisation, certificate, permission, licence, approval, direction, declaration, authority or exemption from, by or with any government, semi-governmental or judicial entity or authority …
Presumably, the drafter was worried that if the definition were to refer simply to “any authorization,” a court might hold that something that a government agency called an “exemption” didn’t fall within the scope of the definition.
That brings us back to however so described. You see it in materials with a Commonwealth connection. Here it is in a Swaziland statute:
“equipment” includes any equipment or machinery however so described;
And here it is in the terms of use of a UK website:
As a condition to using the Service, you agree and understand that BikerHQ may display advertising, however so described, and other information adjacent to and related to its content.
The thing about however so described is that the so seems not to make sense. That’s why you also see however described. Here’s an instance of however described from the Australian Fair Work Act of 2009:
terminate, in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law.
But even however described could be improved. The issue isn’t description, but use of an alternative label, so I’d say however referred to.
Whatever phrasing you use, the aim is to make it clear that the provision in question isn’t to be interpreted pedantically: if a provision refers to “ice cream,” something that’s referred to as “frozen confection” would fall within the scope of the provision. It might be that a court would reach that conclusion anyway, but making it clear in a contract would preclude a disgruntled contract party from using that issue to pick a fight.
To see how this approach would work in practice, here’s an alternative version of the definition at the top of this post (I resisted the temptation to tinker with the string at the end):
Authorisation includes any authorisation (however referred to) from any government, semi-governmental or judicial entity or authority …
I don’t recall having previously seen however referred to or any variant used in a contract. Because I couldn’t search for it on the SEC’s EDGAR system (Lexis doesn’t allow searches that include however), I don’t know how often this approach is used. But I think it’s useful.
It requires the reader to determine whether, for example, “registration” is close enough in meaning to “authorization” to allow the former to fall within the scope of the latter, so there’s scope for uncertainty.
On the other hand, when you inflict on the reader a string of synonyms or near synonyms, you turn contract prose into a thicket the reader has to hack through. It also raises the issue of what happens if it turns out that something potentially relevant is described using a word that’s not included in the litany; the longer your list, the greater the chance that a court will conclude that it was meant to be comprehensive and so doesn’t cover items described using a term that’s not included.
So each approach involves risk. Which approach makes most sense would depend on the context.
So, readers, some questions: Have you seen this approach used in contracts? If so, however often? What do you think of it? I have to come up for a term to describe this approach. Any suggestions?
Finally, my thanks go to the participant in my Sydney seminar who asked me about however so described. It’s inevitable that by engaging constantly with seminar participants, clients, readers, and students, I’ll discover new issues. Add this to the list of topics to be addressed in the fourth edition of A Manual of Style for Contract Drafting.
I’ve seen similar usages, although as you say it’s mostly as the basket clause in some abominable snowball of words.
I think you were too kind in describing “however so described” as not making sense; it’s actually self-defeating, since the “so” is a limiting word that refers back to the specific descriptors the drafter presumably wanted to supplement.
That said, I find “referred to” to be a clunky formulation that will undoubtedly lead to titters from those members of the audience who regard it as a formulation, to invoke Churchill, “up with which [they] will not put.” I’m struggling to figure out what distinguishes referring to something from describing it (as opposed to defining it). However, if that rankles, one might try “characterized” or “designated,” each of which I’ve seen used in contracts to convey this (let’s face it) hand-waving concept.
Alternatively, you could include a couple of examples, and then:
My concern, though, is a small nagging fear that this usage might be too open-ended.
From a quick Google search, it appears that the list is included in numerous Australian legal documents, perhaps all generated by the same law firm that does Stock Exchange work.
I am not sure I would be happy using any abbreviation for this list, as it seems to cover such a wide range of things, and I am not sure I have got the common thread. I don’t get, for example, how notarisation could be in the same category as an approval, while a franchise seems to be much more than an approval. On the other hand, lodgement does seem to be a synonym for application.
Picking up on one of DC’s comments, in some instances in which the list appears it states explicitly that it includes the situation where Govt does not object to an application within the time available for objection, so I suspect it could be passive approval as well as situations where approval is not required; all that is required is a notification by the individual or entity to Govt. So I am guessing that several categories of activity may be lumped together in that definition and that “however described” might apply to some but not all of those categories.
In cases where the general principle is clear, I personally prefer “however described”; but described by whom? In the example, it may be Govt regulations that give different names to essentially the same thing. Perhaps this should be stated eg “however described by Government Agencies”.
As for “however so described” my intuitive view, with no evidence what[so]ever, is that it has come from “howsoever described” and the “so” has been transposed, with the contradictory effects that Ken and Vance describe.
Yes, in my version I probably tried to cover too much with “however referred to.” But the original version lumped together too many apples and oranges, and the kitchen sink too.
A. Wright: Regarding your point 2, my problem with “described” is that it suggests description rather than designation. If you put on a box a label with the word “box,” are you describing that box? I’d have thought that describing a box would involve stating its dimensions, materials, and so on.
What I’m exploring with my proposal is addressing the issue in your point 3. Going beyond that might indeed involve “including.” But part of the problem with the current definition is, as I mentioned in my response to Mark’s comment, that it seems to contain clutter. For example, I don’t know how “notarisation” fits in the scheme of things. Coming up with a sensible definition would require further surgery.
Ken