[Update: This 30 July 2017 post rendered this post redundant.]
In this 2015 post I consider Nothing in this agreement gives X the right to [do something].
Now let’s consider Nothing in this agreement prevents X from [doing something].
We have to ask the age-old question: what category of contract language is this? Is it language of discretion? In other words, how about saying instead X may [do something]? I wouldn’t do that: it suggests that X is being granted permission under the contract, whereas the point is that nothing in the contract interferes with X doing whatever it it.
I say it’s language of declaration: Y acknowledges that nothing in this agreement prevents X from [doing something].
Any objections?
Isn’t it language of policy? To me it’s something meta, it speaks of the contract itself, telling that none of its clauses prevent X from doing doing something. This way, both parties agree that the contract itself doesn’t regulate that specific behaviour.
Thank you for playing! Language of policy relates to groundrules of the contract. The provision in question relates to what the contract doesn’t do. I’ll think about this further.
Whatever approach works best would presumably also apply to the provision I discuss in this post: https://www.adamsdrafting.com/is-silent-on/
To me all types of contract language fall into 3 categories (or levels of importance): 1) those that generate obligations; 2) those that describe the obligations (what must be done, what is allowed and what’s not); and 3) those that describe the contract itself (or one or more of its clauses).
If you agree with this classification, stating that something is not covered by the contract falls in the third category. And since you and I both agree that you should use the policy language to express the lack of obligation, you should also use it whenever you want to express “silence”, or lack of contractual regulation in a specific matter.
I hope that my poor English doesn’t prevent me from making a point. Thanks for bearing with me.
A few comments:
1/ I agree that [a] ‘Y acknowledges that nothing in this agreement prevents X from shooting skeet’ is language of declaration, but disagree that it means the same as ‘nothing in this agreement prevents X from shooting skeet’.
2/ As an aside, I think it would improve both versions to use ‘prohibit’ instead of ‘prevent’, as contracts don’t literally prevent things.
3/ I understand ‘nothing in this agreement prohibits X from shooting skeet’ to signify an absence of prohibition, which fits into no existing category of contract language.
4/ That being so, the options are:
(a) Ban it from contracts under the rule banning language that belongs to no category of contract language;
(b) ‘Park’ it by diktat in an existing category of contract language, the way language signifying absence of obligation is ‘parked’ in language of discretion, though it grants no discretion. MSCD3 3.213. In fact, language signifying absence of prohibition would fit well in the category of language of discretion under the following reasoning: ‘Although as a matter of pure logic, absence of [prohibition] doesn’t equal discretion, as a practical matter the two are comparable.” Id.;
(c) Change the text’s meaning by interpretation or alteration so that its new meaning fits into an existing category, as by putting ‘Y acknowledges that’ in front of ‘X is not prohibited from shooting skeet’; or
(d) Adjust the categories of contract language, perhaps by (1) creating a category of ‘language of absence of prohibition’, or (2) revising the existing category of prohibition to include absence of prohibition, as in ‘language of prohibition is language by which a party takes on or disclaims an obligation to refrain from doing a thing’.
5/ Either solution in 4(d) would probably make other adjustments in the categories advisable, such as creating ‘absence of obligation’ as a new category of contract language, or revising the existing category of obligation to add disclaimers of obligation. Either of those adjustments would cry out for relocating to the new ‘no-duty’ category or subcategory provisions like ‘Acme is not required to replace the Widget equipment’ and ‘Acme is not assuming any of the Excluded Liabilities’.
I would call it language of clarification.
I know that’s not one of your defined categories, and not something you generally advocate for in contracts (better to just say it clearly in the fist place, I know). But where I see it in practice it’s usually following a “Notwithstanding the foregoing” or “For the avoidance of doubt”–yes, now it’s like I’m just trying to piss you off :)–and it’s usually a negotiating compromise.
Two sides are fighting over a particular provision. One side says, “I don’t like that provision because it could theoretically be interpreted to mean I can’t do X.” The other side responds, “Well, I don’t think it says that, and I need this provision in here because of A, B, and C, so how about we just add a sentence afterward saying that nothing in this agreement prevents you from doing X.”
I may not like it, but sometimes I’ll suffer it to get the contract signed. It’s better than leaving the problematic language in there without the clumsy carveout. Right?