One of the participants at my recent Washington, D.C. seminar asked me about the notation “intentionally omitted.” I love being asked about stuff I hadn’t ever thought of writing about.
“Intentionally omitted” is used in a contract to indicate when the text of an article, section, subsection, or enumerated clause has been omitted while leaving the enumeration of that unit intact. It’s an alternative to simply deleting the unit in question, and it’s used to avoid renumbering blocks of text.
For the most part, you’d only be worried about renumbering if you don’t use Word’s automatic cross-referencing feature but instead type in the numbers in your internal cross-references—a scary notion. In a document of any length, “intentionally omitted” would be the only alternative to the tedious task of updating cross-references manually with every revision.
If you use Word’s cross-referencing feature, you should feel free to delete entirely any unit of text that you don’t need, safe in the knowledge that all internal cross-references would adjust automatically. Conceivably some people might be so familiar with a given contract that they’d want any given section to retain the same enumeration, even if preceding sections have been deleted. If that includes you, go ahead an use “intentionally omitted.” But I suggest that there are scarier things in contracts, and in life, than a familiar section that bears an unfamiliar number.
But in one context you’d need to use “intentionally omitted” so as to avoid renumbering. That’s when some other contract or other document refers by number to a section in the contract being revised and renumbering would cause that section number to change.
By the way, when you use Word’s cross-referencing feature, make sure that you update the fields—coded cross-reference numbers constitute fields—when you save the document. Also, check the option that results in any fields being updated automatically when you print a document.
I’ve had more than my share of problems with Word auto-numbering, so I probably wouldn’t have as much faith in the reliability of the software as you do! Eric.
Even as a computer geek that knows how to use Word’s cross-references, I do not use it for contracts where drafts are exchanged between the parties or different people.
A good example of where I’ve tried and failed to implement it. We attempted to draft a good template license agreement for a client. After some discussion about using cross references, I undertook the rewrite and used cross references. THE VERY NEXT PERSON TO REVIEW MESSED IT UP. So I got a number of complaints “What are all of these “BOOKMARK NOT DEFINED errors?” It’s not always a great conversation to have when you point out it was they who created the errors (it turns out they “cut & paste” the document into their own document management system. Cut & paste has the downside of losing the document markers.
I’ll suggest another reason that we’ve used “intentionally omitted”: contract management and assembly software. In this case, the client keeps the numbering consistent in a vast majority of cases so that they can easily manage their obligations to different customers. Thus references are not only intra-contract but only between contract and contract management software. This client has a custom software program for assembly and management because it has a huge number of obligations to manage.
Mike: Great points. Ken
I’ve maintained the auto-numbering functions in my own internal drafts, but tend to lock them down before I send them out to outside parties. (Ctrl-A to select the whole doc, then Ctrl-Shift-F9 to hardwire all of the fields.) Fields tend to mess up any number of things once they get in the wild (including our meta-data scrubber here at my firm), so out they go on the shared docs. However, the working draft I keep here still has all of the fields, so when I get back in a new draft I’ll just do a compare and import the changes into my fully automated document rather than keep working with the same one the other side sent to me.
(That in and of itself often causes people consternation, since they seem to like to keep the single common redline going rather than let me keep my master draft. In the end, I think the consternation is overcome by the lack of Word crashes I get when I keep my master. Harumph…)
Michael: Excellent suggestion! The commenters are on a roll today … Ken
My experience using Word’s autonumbering “feature” is that it is a nightmare. You cannot search easily based on the paragraph numbering.
It is an excellent tool for outside counsel who want to (a) drive up their legal bills to their client or (b) invest additional time on matters without charging their client for time spent cleaning up the format errors.
They inject headache and metadata, slow down transactions.
Worse are Word’s Comment “feature” and the annotation feature. Good ways to increase time and delay as the other side struggles first to figure out your comments, annotations, etc. and then have to strip those out of the document. Often injects more metadata.
Depending on whose side you act, drawing attention to what has been deleted in a contract may be a good idea, or it may be problematic, especially in relation to contracts where there are various similar clauses.
A customer may demand deletion of an onerous clause. This is allowed by the service provider, because the service provider knows or believes that other clauses provide more or less the same protection anyway. Some years later when a claim occurs, the clear deletion of the clause provides interpretative assistance of the intention of the customer in deleting the clause.
Could this happen to bankruptcy clients, or uncontested documents in Kansas? The court trustees in Wichita, KS has two zeroes before the docket/case number. They say the reasoning is for payment purposes. It’s always having one or two or none of the zeros, charging on the same document sent out.
Thank you Ken!
Is “Intentionally Omitted” still vastly used today when wanting to get rid of a section/clause?