Black-and-white is simpler than shades of gray—the most straightforward MSCD recommendations are those urging you to scrap entirely a given word or phrase. Here’s a partial list of words and phrases that ideally would be absent from your contracts:
at no time
best efforts
covenant
for the avoidance of doubt
hereinafter referred to as
including but not limited to
including without limitation
in consideration of the foregoing
incorporated by reference
indemnify and hold harmless
in lieu of
intending to be legally bound (but see MSCD 1.124)
in the event of
in witness whereof
it being understood
Latinisms
may at its sole discretion
moral turpitude
notwithstanding
now therefore
of any kind
prior to
provided, however, that
provided that
pursuant to
represents and warrants
reserves the right to
(s) (at the end of a noun)
said
same (used as a pronoun)
set forth in
shall be
shall have the right to
such as
such (used as a pointing word)
subsection
termination or expiration
terms and conditions
that certain
third party
true and correct
under no circumstances
unless the context requires otherwise
until such time as
whatsoever
whereas
willful
without limiting the generality of the foregoing
witnesseth
If you’re wondering why I included a given word or phrase, or if you disagree with any of my selections, I suggest you first consult MSCD, or root around on this blog, then have your say in the comments. And let me know if you’d add anything to the list.
Ken,
I’d add:
in the event that (should be “if”) and
in terms of (think of something else)
I DO use some of the forbidden, and fastidiously avoid others.
Thanks.
Steve
Steve: Thanks for your additions; I concur with your first suggestion and will need to explore contexts in which drafters use in terms of.
And which items on my list do you use, and why? If you use them and I don’t, one of us is being less efficient than the other. May the more efficient win!
Ken
Ken,
I’ve just stumbled across your site (and a useful 2006 post about “defend, indemnify and hold harmless”) and am find it fascinating reading so far! However, as an English lawyer, I was intrigued by some of the inclusions in the list above and wondered if you could put a little explanation against each one. Some are obvious, but others, such as “third party” are more puzzling.
Best wishes,
Jonathan
Jonathan: Welcome! As I noted in the post, you can find my thoughts on the listed items in MSCD or on the blog (use the search tool).
I knew that including third party might puzzle some people. I just realized that I haven’t done a blog item about third party. I might do one shortly.
Ken
Ken,
You list “cannot” as a word to avoid. However, in MSCD (2nd ed) 16.36, it states “cannot” should be used in preference to the lawyerism “is unable to”.
Please clarify where usage of “cannot” is, or is not, acceptable.
Thanks,
Keith
Keith: Thank you for pointing out the inconsistency. I’ve deleted can and cannot from the list of shame because they can in fact be used legitimately in certain contexts. I would have done well to consult myself on the subject: https://www.adamsdrafting.com/2008/11/03/can-and-cannot/. Ken