In yesterday’s post I wrote about how the Appellate Court of Illinois saw value in useless contract language, namely the traditional recital of consideration and “successors and assigns” provisions.
But that post might prompt the following response: “The fact that the court saw value in the traditional recital of consideration and ‘successors and assigns’ provisions means that I should always include such language in my contracts. Doing so would ensure that if one of my deals is challenged for lack of consideration and a judge handling the dispute is under the same misapprehension as the Appellate Court of Illinois, the ostensibly useless language would stand me in good stead.”
I see three problems with this justification:
- First, if a contract is at risk of being held invalid for lack of consideration, you should fix that by making sure you have consideration, not by gambling on a judge’s being confused enough to find real value in the traditional recital of consideration.
- Second, the more useless language you have cluttering up a contract, the more confusing you make it for all readers.
- And third, it might be that your side is the one that would prefer to have the contract held invalid. To the extent that a court somehow attributes significance to the useless language, it might be to your detriment.
More generally, don’t put in your contracts stuff that’s unnecessary or doesn’t make sense on the off chance that a judge might mistakenly think it accomplishes something. That’s asking for confusion.
Mark: Regarding light pandering (sounds like it should be covered under the Sexual Offences Act of 2003!), it’s difficult to discuss it in the abstract. I need concrete examples.
Regarding whether appointing judges works better than electing them, you won’t get any heat from me. But what came to mind as I read the opinion was, What were the clerks doing?
Ken
Concrete example of light pandering: a drafting convention that says,
“In this agreement, the word ‘shall’ is used to impose a duty on a party that is the subject of the sentence, and used in no other way.”
This would make it less likely that a judge interpreting a ‘shall’ sentence would reach for authority holding that sometimes ‘shall’ means ‘may’ and that sometimes ‘shall’ is mandatory and sometimes merely directory, for convenience and good order.
Heavier pandering would be a drafting convention that states,
“The parties intend that this agreement follow, and believe that this agreement follows, the drafting recommendations set forth in MSCD3 by Kenneth A. Adams [with exceptions as noted?].”
Under the heavier pandering, a judge would be led to understand that absence of a recitation of consideration does not imply that there was no consideration. But it would still leave the burden of proving the presence of consideration upon the party seeking to enforce the contract, in the absence of a burden-shifting recitation of consideration.
A. Wright: By “pandering,” I mean including twaddle on the off chance that a judge thinks it accomplishes something. What you have in mind could be termed “hand-holding.”
For two reasons, I wouldn’t indulge in your “light” proposal. First, anyone who uses “shall” to mean “has a duty to” runs no risk. In particular, the notion of the directory “shall” applies only to interpreting statutes. And second, such a provision would fail if a drafter is less than entirely disciplined in using “shall.”
Regarding your heavier version, I’ll have to ponder your combined use of language of intention and language of belief. But regarding the broader point, I think that MSCD would fail if following its guidelines doesn’t result in contract language that’s clear on its face.
Ken
Two points: (1) I’m not sure that specifying an authority to be used to resolve a question if one arises is a confession of failure. Think of specifying a dictionary. Problem? (2) Short of a drafting convention pointing to MSCD generally, drafting conventions that set forth a few specific not-entirely-intuitive MSCD recommendations might embolden a drafter to follow those recommendations. For example, some think your recommended use of “including” is strong medicine and are loath to give up the encrustations like “without limitation.” One quick drafting convention nullifying eiusdem generis in connection with “including” and there go all the unnecessary “by way of example and not of limitations.” Must the perfect be the enemy of the good? –Wright
1/ I still can’t wrap my mind around how a successors and assigns provisions constitutes even a claim of consideration. It’s as if the presence of recitals were offered as proof of consideration. Total non sequitur.
2/ In jurisdictions where a recitation of consideration creates a rebuttable presumption of consideration, I can’t see the harm in a short, truthful recitation along these lines: “The consideration for this agreement is the parties’ mutual promises set forth in this agreement.” That would put the “burden of proof” (burdens of production and persuasion) on the party denying consideration.
3/ That said, I can’t figure out the category of contract language to which an infixed recital of consideration belongs. The title “recital” suggests that it’s a statement of fact, like prefixed recitals. But maybe it’s language of intention or belief, like statements that one party is an independent contractor, not an employee.
A. Wright: I think the promises speak for themselves. Ken