As one of their assignments, last week my students at Notre Dame Law School analyzed the verb structures in the “SOW terms & conditions agreement” that goes with Cisco’s advanced services statement of work (here). Obviously, I had to perform an analysis of my own. One thing that caught my eye was use of nor shall in the following:
The receiving party shall at all times keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by the disclosing party under the SOW, nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party’s written consent.
I of course immediately looked for it on EDGAR. It’s used extensively. So what to make of it?
On the one hand, it’s unobjectionable. According to Garner’s Modern American Usage, “Nor, like neither, may begin a sentence. It must follow either an express negative or an idea that is negative in sense.” I take issue with one aspect of Garner’s analysis: in contracts, nor shall, preceded by a comma, is invariably used to continue a sentence.
But if you want to express prohibition, then instead of echoing prohibition expressed earlier in the sentence, using an awkward structure that places the auxiliary (shall) before the subject and the main verb, it would be clearer to use language of prohibition . That would have the added benefit of avoiding using shall in a way that fails the “has a duty” test. Furthermore, nor shall is conducive to run-on sentences.
So here’s my version of the extract above, bearing in mind that I’ve made no attempt to fix the remaining problems:
The receiving party shall at all times keep in trust and confidence all such Confidential Information. Without the prior written consent of the disclosing party, the receiving party shall not use such Confidential Information other than as expressly authorized by the disclosing party under the SOW and shall not disclose any such Confidential Information to third parties.
Having become aware of this usage, I of course looked for it on EDGAR. It’s used extensively. Here are a couple of extracts from EDGAR to which I’ve applied the same sort of fix as I recommend above, while holding my nose:
The rights accruing to a Shareholder under this Section 8.4 shall not impair any other right to which such Shareholder may be lawfully entitled, nor shall anything herein contained restrict [read . Nothing herein contained restricts] the right of the Trust or any Series or Class thereof to indemnify or reimburse a Shareholder in any appropriate situation even though not specifically provided herein.
No holder, as such, of any Right Certificate shall be entitled to vote, receive dividends, or be deemed for any purpose the holder of the Preferred Shares or any other securities of the Company that may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained in this Agreement or in any Right Certificate [read . Nothing contained in this Agreement or in any Right Certificate will] be construed to confer upon the holder of any Right Certificate, as such, any of the rights …
Landlord shall not have any liability to Tenant whatsoever as a result of Landlord’s failure or inability to furnish any of the utilities or services to be furnished by Landlord hereunder, nor shall such failure or inability [read . No such failure or inability will] be considered an eviction, actual or constructive, of Tenant from the Premises.
When drafters write in this flowery way, I think they are trying to adopt a high register that they feel matches the importance of legal documents. In other words, I see this as a symptom of a fundamentally misguided drafting philosophy. Change the philosophy, and drafting like this will disappear naturally. But for so long as someone has that mindset, this kind of phrasing will look appropriate to them.
Ken,
I completely agree with getting rid of the “nor shall” construct. However, I tend to take a different approach than your re-formulation of the clause. As you’ve re-drafted it: “Party A shall not (1) X or (2) Y.” To avoid a question as to whether the “or” is an “exclusive or,” I would re-draft as: “Party A (1) shall not X and (2) shall not Y.”
-Vinny
Of course! *smacks self in head* I’ve revised it accordingly. But I suggest that repeating the verb allows me to omit the enumeration.
Ken:
I generally see “nor” as a sign to check for a sentence that is just too long or needs to be broken up with enumeration as you have done. The one exception is where I use a structure of “shall neither … nor” as an equivalent of “shall not … and shall not.” Do you see any difference between those?
As a side note, I learned “shall not … nor” to be improper English (way back when we still wrote on clay tablets). I have no idea whether it is, but Garner’s Modern Legal Usage prefers “shall not … or” to “shall not … nor.” In most of his examples, that works fine, but I worry about a drafter losing the effect of the “or” in the course of negotiation, so I prefer one of my options above to “shall not … or.” Plus, then I don’t have to think too hard about disjunctives, which would require me to re-read an entire chapter of MSCD.
Chris
Regarding your question, I’m afraid I have to point you back to the dreaded chapter: see 11.47.
Regarding or in this context, see how Vinny set me straight.
Ken:
Hmmm. I think I passed the quiz. I do dread that chapter. I dread applying it even more. It is clearly the most difficult material in the entire book.
Chris
Think of the poor guy who had to write it!
One of your fixes contains “herein.” Is this a justified use of “herein” or a case of the unstated caveat that when you do a fix, you are fixing only the defect under discussion, not every defect in the “fixed” passage?
I also note with neither approval nor disapproval that you allow a lot of passive-type constructions (meaning not technically passive) such as “other than as expressly authorized by the disclosing party” (vs. “other than as the disclosing party expressly authorizes”) and “nothing contained in this agreement” (vs. “nothing this agreement contains”). This accords with your mild anti-passive stance in MSCD.
Similar but in another category is “no such failure or inability will be considered an eviction.” Is this an interpretive rule or a substantive provision or, put otherwise, is this binding on only the parties or also on a court? Put still otherwise, who’s the missing by-agent? Why not say “no such failure or inability will be an eviction”?
Ahem: I tried to make it clear that I wasn’t touching anything else in the samples. Doing so would have gotten in the way of the point I was trying to make.
Hi Ken,
I am not seeing a negative discussion of use of “shall not” in any posts or in MSCD Section 3.
The very useful “has a duty to” test (for “shall”) illuminates how “shall not” is probably the most problematic use of “shall,” in my mind.
One can see how problematic this clause, which I have run into numerous times just today, is: “No action shall lie against [Acme] under [certain circumstances].” I think the same problem exists if “an action shall not lie against…” was used. However it is the “no action shall lie” construction that I seem to be running into.
Why is there no discussion of this in blog posts, MSCD, or anywhere else that I can find of the doubly problematic nature of “shall not”?
Thanks.
-Joe
Joe, the example you’re using (an action shall not lie against) is not only clunky, it’s also language of policy, not language of prohibition, so I’d use will. It’s got nothing to do with shall.