Hot on the heels of my notion of “language of intention” comes a candidate for yet another new category of contract language: language of recommendation.
Consider the following extract from a stock option agreement (emphasis added):
As a result, the Company strongly recommends that the Grantee not rely on the information in this Appendix as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Restricted Stock Units become vested and/or when any Shares acquired upon vesting and settlement are sold. In addition, the information contained herein is general in nature and may not apply to the Grantee’s particular situation. As a result, the Company is not in a position to assure the Grantee of any particular result. The Grantee therefore is advised to seek appropriate professional advice as to how the relevant laws in his or her country may apply to his or her particular situation.
And the following is from a “license and development agreement”:
System commissioning and QA are the sole responsibility of Customer, and Customer is advised to perform QA on a regular and ongoing basis.
But it’s relatively rare for a contract to contain a recommendation. When you recommend something, you’re not stating a fact, you’re pointing out how the other party can mitigate risk. My inclination is to recast a recommendation by Party X as an acknowledgment by Party Y, so as to make the legal implications clearer.
What do you think?
Ken: The circumstances where you would use this sort of language are probably too narrow to constitute an additional category of language, but you might consider labeling it “language of CYA” or maybe “language of disclaimer.”
Brian: Yes, it’s narrow, but I think it serves a different semantic function than the other categories. Ken
Ken: I think you’re right about that. But getting too granular would be tough for a non semantics expert like me. I’ve found it helpful when drafting to try to determine which category of language is appropriate as an aid to thinking through exactly what it is that I’m trying to say. But sometimes I really could use some semantic garanimals instead of additional nuance.
Your examples reminded me of the brouhaha earlier this year over a start-up’s (I forget which company it was) employee stock options that turned out to be worthless. Their docs could have used a liberal dose of language of recommendation.
Ken:
I think there is some value in having a language of recommendation, for two scenarios:
First, I realize you are mainly talking about contracts, but your language of X analysis works just as well for corporate policies. It is especially useful to differentiate between:
– language of obligation: employee shall X
– language of discretion: employee may X
– language of recommendation: employee should X
Seconf, my form contracts often have a recommendation that the other party obtain its own legal counsel to advise it on compliance matters where we could be argued to be experts. I only really see two basic possibilities here:
– should: “Customer should X.”
– advise: “Vendor advises X” or “Vendor recommends X.”
Using “should” makes it sound like the party receiving the recommendation agrees with the recommendation. Using “advise” avoids that problem.
I don’t like recasting language of recommendation as an acknowledgment because you get right back to the problem of what language to use in describing what is being acknowledged: “Customer acknowledges that [it should] [Vendor advised it to] [Vendor recommends it] X.”
Chris
The only things that matter about such language are:
1. how the language will come across to a judge or juror — I know, I’m a broken record on that subject; and
2. whether the other side can try to dodge it somehow.
The phrase Customer acknowledges isn’t as good as Vendor recommends. The judge / juror will know that Vendor’s lawyer wrote the language, not Customer. As a result, the judge / juror might might unconsciously discount the Customer acknowledges version as being self-serving and perhaps even overreaching. In a close case, that might make a difference.
Ken — sorry for the belated comment. Your recent post on language of belief led me back here.
I see the occasional need for provisions like these, but I have a problem with “strongly recommends.” It reminds me of the line from A Few Good Men after the character played by Demi Moore “strenuously” objected. Her co-counsel: “I strenuously object?” Is that how it works? Hm?
“Objection.” “Overruled.” “Oh, no, no, no. No, I
STRENUOUSLY object.” “Oh. Well, if you strenuously object then I
should take some time to reconsider.”