Here’s something that I suppose I should have mentioned years ago: to the list of suboptimal ways of imposing an obligation on the subject of the sentence, add promises to. For purposes of language of prohibition, the counterpart is promises not to. Use instead shall and shall not.
Although promises to isn’t as conducive to confusion as agrees that, in that no reasonable reader could think that promises to is language of performance (with, for example, promises to purchase being equivalent to hereby purchases), it’s still an unnecessary variation.
Here are some examples from EDGAR of use of promises to and promises not to:
In consideration of the payments made and benefits provided under the terms of this Agreement, and except for claims Executive may have under this Agreement, Executive (on behalf of himself and his personal representatives) promises not to sue, and releases and forever discharges the Company …
Borrower hereby unconditionally promises to pay Bank the outstanding principal amount of all Credit Extensions and accrued and unpaid interest thereon as and when due in accordance with this Agreement.
Employer accordingly promises upon execution and delivery of this Agreement to provide Executive immediate and continuing access to Confidential Information …
Cross Border Resources, Inc., a Nevada corporation (the Company ), promises and agrees to sell and issue to the Holder …
To the extent permitted by applicable law, the Employee … promises not to seek or accept any award, settlement or other monetary or equitable relief from any source or proceeding brought by any person or governmental entity or agency on his behalf or on behalf of any class or which he is a member with respect to any of the claims he has waived.
Does anyone have reservations about getting rid of promises to pay in a promissory note?
Ken:
Not in a promissory note. I might use it in some other document that has a lot of non-promises as background, then a single promise that needed to be highlighted. I’d normally use “agree” in that context, but there might be other agreements as background. It would definitely be an edge case.
Chris
Chris: I want to use the same verb structures to convey the same meaning, whatever the context. So I’ll always use “shall” to impose a duty on the subject of the sentence, whatever the context. But I might make an exception for promissory notes, if change would create too much cognitive dissonance. Let me think about that. Ken
Bryan Garner would certainly revise “Borrower promises to pay Lender…” to “Borrower shall pay Lender…” in a promissory note.
I hesitate to speak for Bryan Garner, but he wants “shall” purged from all legal writing. I have to assume that includes promissory notes.