I spotted an oddity in section 1(a) of the contract providing for Jeff Bezos’s purchase of the Washington Post. Observe where the defined-term parenthetical is positioned (italics added):
To the extent not already owned by the Post Subsidiaries, the Transactions shall include the transfer to the Purchaser or the Post Subsidiaries of any other assets primarily related to the Post Business (other than the Excluded Assets), including (the following collectively referred to as “Post Marks”) any trademarks, service marks, logos, domain names and social media handles primarily used by the Post Business such as the “The Washington Post” (and any rights that the Seller may have to any derivations, variations or abbreviations thereof such as those incorporating the term “WP” or, subject to Section 7(e), “Post”).
So an integrated definition is used to create the defined term “Post Marks,” but the defined-term parenthetical is positioned at the front of the definition, instead of at the end of the definition, which is the usual place.
That’s not a terrible crime, but it’s an example of unhelpful inconsistency. If defined-term parentheticals are usually placed at the end of the definition, pulling this sort of switcheroo on readers forces them to work harder.
And I suggest that putting the defined-term parenthetical between the definition and the preceding portion of the sentence fragments the text unnecessarily.
In this instance, if the drafter had put the defined-term parenthetical at the end, it might not have been clear, without significant restructuring, how far back the definition stretched. In that case, I suggest that the appropriate fix would have been to use an autonomous definition, rather than reversing the usual structure for integrated definitions.
(Go here for my general critique of this contract.)
Ken,
Agreed on all counts. Also, one additional problem that this sort of formulation might present (though not in this context) is the analog of the problem that “the foregoing” gives rise to. With “the foregoing,” the reader asks, “How far back?” With “the following,” the reader asks “How far forward?”
-V
Also not a terrible crime is putting a short name defined term first and the definitional parenthesis afterward: “Acme acknowledges that IBM (International Business Machines Corporation) is one of Widgetco’s Key Customers.” It’s reader-friendly because a reader who already knows the abbreviation can skim the parenthetical definition. Similar examples for Americans might be FBI, NATO, OSHA, and BAFTE (Bureau of Alcohol, Firearms, Tobacco and Explosives).
I didn’t check, but I think MSCD countenances autonomous definitions after the defined term. If so, Ken’s “appropriate fix” might look like this (including revising out the wicked “shall”):
To the extent not already owned by the Post Subsidiaries, the Transactions will include the transfer to the Purchaser or the Post Subsidiaries of any other assets primarily related to the Post Business (other than the Excluded Assets), including Post Marks. “Post Marks” means any trademarks, service marks, logos, domain names and social media handles primarily used by the Post Business such as the “The Washington Post” (and any rights that the Seller may have to any derivations, variations or abbreviations thereof such as those incorporating the term “WP” or, subject to Section 7(e), “Post”).