In contracts, use of the word suffer comes in two flavors, silly and annoying.
Silly
First, silly—the intransitive use of suffer. When use to mean “to submit to or be forced to endure,” suffer is unobjectionable: I suffer from chronic insomnia. But it’s a bit much when used in contracts to mean “undergo, experience.” Oh, how Acme suffers! Usually the simplest fix is to use incur instead. But because suffer is used with an abstract noun, sometimes your best bet is to use an adjective instead.
Here are some contract examples of the intransitive use of suffer (from EDGAR, of course), appropriately revised:
The Consultant will fully indemnify and hold harmless the Company from and against all assessments, claims, liabilities, costs, expenses and damages that the Company
may suffer or incur[read incurs] with respect to any such taxes incurred by Consultant in connection with compensation paid hereunder or the benefits as described above.The parties agree that the provisions of Section 5.03 are fair and reasonable and that the amounts payable by the Company to the Executive or for his benefit pursuant to Section 5.03 are reasonable estimates of the damages
which will be suffered by the Executive in the event of the termination of his employment with the Company[read that the Executive will incur if his employment with the Company terminates] in the circumstances set out in Section 5.03 and will not be construed as a penalty.the Borrower shall pay to such Lender such additional amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation
for any such reduction suffered[read for any such reduction that it incurs].Except as described in the Draft 10-Q, since October 27, 2012,
the Company and its subsidiaries, taken as a whole, has not suffered any Material Adverse Effect[read no Material Adverse Change in the Company and its subsidiaries, taken as a whole, has occurred], except forIf Employee
should suffer a Permanent Disability[read is Permanently Disabled] …The Executive acknowledges and agrees that if he were to divert this information and the relationships to a competitor,
the Company would suffer irreparable harm to its business and goodwill[read the Company’s business and goodwill would be irreparably harmed] in an amount that cannot be readily quantified.
Annoying
And now, the annoying use of suffer—using it transitively to mean “to allow, especially by reason of indifference.” It’s pompous and archaic. Usually the simplest fix it to use instead permit, but sometimes a rewrite is in order. Here are some EDGAR examples:
Borrower Representative shall not, and Borrower Representative shall not permit any of its Subsidiaries to, create, incur, assume or
suffer[read permit] to exist any Lien on any of its assets, including the Collateral, other than the following (collectively, ” Permitted Liens “)Mortgagor … will
suffer[read permit] no waste to the Property …Borrower will not do any of the following … :
replace or suffer the departure of its chief executive officer or chief financial officer without delivering written notification to Bank within 10 days after such replacement or departure[fail to notify the Bank no later than 10 days after the Borrower’s chief executive officer or chief financial officer is replaced or ceases acting as such];
Agreed, but isn’t there a difference between allow and permit? Saying you won’t allow something to happen seems more onerous than saying you won’t permit it. Not allow sometimes has shades of “will prevent from happening”. If the more onerous meaning is intended, how best to express?
Good question, especially for ESL-speakers like me.
BTW, “especially” os “specially”? [Not to forget: https://www.adamsdrafting.com/especially/%5D
Now that’s something I’ve never considered. Watch this space!
I have always seen “suffer” as a means of saying that if the thing you won’t suffer to happen happens, willy-nilly, then there’s some consequence (usually a default). “Permit” and “allow” seem too caught up in the obligor’s volition. Thus, the workaround would be to say that if such-and-such happens, then there is a default or whatever. “Suffer” is one of the few words that can turn a passive statement taking many words into an active one consuming few words, and I therefore, perhaps irrationally, perhaps pompously and annoyingly, cleave to it.
I don’t see it. That might mean that I’m obtuse, but if I don’t see it, I suspect that plenty of other people wouldn’t see it either. Why indulge in such subtleties instead of saying what you want to have happen?
OK, but in that case instead of using a verb like “permit” that implies volition, if the clause is a negative covenant but relates to a matter over which the party may not have control, it should be removed from that category and restated as an event of default whose happening, regardless of the party’s volition, constitutes a default (or, to put it more neutrally, gives the other party a right of termination or whatever).
Sure, if the idea is “if X, then Y,” say so.
Mark Anderson has a subtle ear for distinction, and I think he senses that one can “give permission” but not really “give allowance,” so they’re not perfect synonyms, from which follows that if a party “shall not allow” something, that party “shall prevent” it. I see the point but don’t agree, perhaps under the influence of the song, “Mama Don’t Allow.” Be that issue as it may, the question remains how to distinguish clearly between (1) a duty not to give permission for something, so that if it happens , it’s unpermitted, and (2) a duty to prevent something from happening in the first place. I suspect the way is to use the words “shall not give permission for” and “shall prevent.” But Vance Koven’s way seems better still: say that “if X happens, the consequence will be” whatever.
But if a party is in a position to stop something from happening, it seems appropriate to impose on that party an obligation to do so.
Another point: the first example given, “appropriately revised,” begins: The Consultant will fully indemnify and hold harmless the Company from…. Ken strongly disapproves of indemnify and hold harmless. I think it would be prudent to scatter disclaimers more freely, as by saying “revised exclusively as to the point under discussion and leaving other horrors intact.”
Nothing—repeat, nothing—justifies using “indemnify and hold harmless.” Pass me the smelling salts! And I’d use “shall,” to impose an obligation on the subject of the sentence.
have had something niggling at me for a while, which one of examples demonstrates nicely.
“read no Material Adverse Change in the Company and its subsidiaries”
I would lean towards ‘or’ instead of ‘and’, but was wondering if there is good reason not to do so.. Any takers?
Jo: I recommend that you consult MSCD 9.115. It’s conventional to use “and” along with the phrase “taken as a whole.”
Of course, this doesn’t have anything to do with “suffer”!
Ken