Today I had occasion to consider use of the phrase in particular in contracts. Here are some examples, taken from the SEC’s EDGAR system:
The Company has taken all reasonable steps to maintain the confidentiality of or otherwise protect and enforce its rights in its confidential information, in particular the trade secrets owned by the Company.
Each FREGAT Owner represents that it is represented by their own counsel in this transaction and that such counsel has carefully reviewed with it the terms and legal consequences of the Exchange and, in particular, the Tax consequences of the Exchange to such FREGAT Owner.
The Employment Agreement, in particular Section 4.9 thereof, contains express provisions regarding Section 280G and/or 4999 of the Code of the type described in Section 14(f) of the Plan.
Lender shall use ordinary reasonable care in the physical preservation and custody of the Collateral in Lender’s possession, but shall have no other obligation to protect the Collateral or its value. In particular, but without limitation, Lender shall have no responsibility for (A) any depreciation in value of the Collateral or for the collection or protection of any Income and Proceeds from the Collateral, (B) preservation of rights against parties to the Collateral or against third persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers, tenders, or similar matters relating to any of the Collateral, or (D) informing Grantor about any of the above, whether or not Lender has or is deemed to have knowledge of such matters.
The Included Entities shall bear all costs and expenses incurred in connection with effecting transactions involving Investment Account Assets. In particular, the Company and the Included Entities shall pay or reimburse the Investment Manager for … .
I don’t use in particular. It serves to flag something that the drafter wishes to highlight. But attributing special significance to one provision necessarily entails downplaying the significance of others. It’s preferable instead to let the provisions speak for themselves.
In particular conveys essentially the same meaning as including when the latter is used in a not-entirely-disciplined manner. (Hence use in one of the above examples of in particular, but without limitation—a real stinker, methinks.) I recommend that you use including only to bring within the scope of the class in question something that’s lurking on the gray edges. (For more on including, see this April 2007 blog post.) That isn’t a meaning conveyed by in particular.
I would use “in particular” if there is an identified risk and I don’t want any doubt that the other party is knowingly assuming the risk, particularly if I think they’re taking a flyer on it, e.g., your example “such counsel has carefully reviewed with it the terms and legal consequences of the Exchange and, in particular, the Tax consequences of the Exchange to such FREGAT Owner.” Don’t come back later and try to claim that the tax consequence was unforeseen and therefore the contract unenforceable for some reason.
Ken, Just to continue from what you write about letting the provisions speak for themselves: In your first example, there would be no need for ‘in particular’ if ‘confidential information’ was defined – I’m assuming that it isn’t.
In your fifth example, there seems to be an asymmetry between the first sentence and the second one. ‘Company’ is not mentioned in the former but is in the latter.