A couple of days ago reader David Munn—ever vigilant against the forces of contract-drafting darkness—sent me the following:
I couldn’t find that you had blogged on one of my pet peeves, which is the overuse of the word “respective,” as in “All capitalized terms that are used but not defined in this SOW have the respective meanings given to them in the Agreement.” Or “In witness of this, the parties to this agreement, by their respective duly authorized officers or representatives, have each executed this agreement effective as of the Effective Date.” (Other problems with this sentence ignored.) It seems to me that nothing would be lost by taking respective out of these sentences, and, in fact, the needless use of the word makes a sentence harder to read, at least for me, as I always have to stop to consider what the writer’s intent was.
This issue hadn’t crossed my mind, so thank you, David, for bringing it to my attention. And I had a look at respectively, too. I’ve concluded that more often than not, respective and respectively are misused. Such misuse is unlikely to result in any dispute, but it certainly doesn’t do the reader any favors.
Anyway, here’s what I found:
Respective means “as relates individually to each of two or more persons or things,” as in George and Hannah spent the summer at their respective vacation homes. It serves to indicate that the components of one plural group are to be considered separately in pairing them with one or more components of another plural group.
Here’s an example of respective being used appropriately in a contract:
“Third Party” means a party other than Acme, Widgetco, or any of their respective Affiliates.
But it’s all too easy to find examples of the extraneous respective. For example, sometimes in question would work better:
Each employee’s election to participate made in accordance with the provisions of section 4.2 will remain in effect for the one-year period that begins on the first day of the
respectiveClass Year [insert in question] and ends on the last day of that Class Year.
At other times, respective is used even with a construction in the singular:
Each of the Trustee and the Company hereby represents that it has the full right and power and has been duly authorized to enter into this agreement and to perform its
respectiveobligations as contemplated hereunder
On or before the Effective Date, each of the Private Investors shall deliver to the Escrow Agent certificates representing that Private Investor’s
respectiveEscrow Founder Units.
All selling securityholders and the Company shall bear the expenses of the underwriter pro rata in proportion to the
respectivedollar amount of securities each is selling in such offering..
And sometimes any should have been used rather than the respective:
“Release Date ” means
the respective dates[insert any date] on which the Founder Units, Sponsor Warrants, Co-Investment Units and Aftermarket Shares are disbursed from escrow in accordance with section 3 of the Securities Escrow Agreement.
The examples cited by David are actually not that bad—at least they each involve two plural groups. (Like David, I’m ignoring other problems with these examples.) But they’d be less cumbersome if one of the plurals were made singular:
All capitalized terms that are[insert Each capitalized term] used but not defined in this SOW have the respective meanings given to them[insert has the meaning given to it] in the Agreement.
the parties[insert each party] to this agreement, by their respective duly authorized officers or representatives, have each[insert by its duly authorized officer or representative, has] executed this agreement effective as of the Effective Date.”
But that fix isn’t possible when the plural subject isn’t a collective noun:
Tenant and Landlord shall cause their respective casualty policies to contain a provision allowing the foregoing waiver of claims.
Respectively means “in regard to each of two or more, in the order named,” as in The first and second prizes went to Mary and George, respectively.
Here are two examples of appropriate use of respectively in a contract:
Each Newco1 Director and Newco2 Director will have one vote on all matters requiring the approval or action of the Newco1 Board and the Newco2 Board, respectively.
Smith and Jones will be responsible for paying one-third and two-thirds, respectively, of any Additional Tax.
(Note that the list earlier in the sentence and that associated with respectively should both use and rather than or.)
But respectively is redundant if there’s no preceding list to echo, as in the following four examples:
… if Tenant fails to provide Landlord with the financial statements or the estoppel certificates within the time periods referenced in sections 23.16 and 23.17
Company and Put Grantor, respectively, represent that each party has been represented by that party’s[insert Each of Company and Put Grantor represents that it has been represented by] legal counsel with regard to all aspects of this Put Fee Agreement.
WHEREAS, the Executive is employed by XYZ, the Company and the Bank in senior executive capacities
IN WITNESS WHEREOF, Owner and Tenant have
respectivelysigned this agreement as of the day and year first written.