“Tend”

Consider the verb tend. It means “regularly or frequently behave in a particular way or have a certain characteristic; be liable to possess or display (a particular characteristic).”

Well, don’t use tend in contract drafting. In contracts, something is relevant if it happens, if it might happen, if it’s likely to happen, or if it doesn’t happen. You could also say that something is relevant if it tends to happen, but the tendency for something to happen is determined over a longer time frame and suggests the possibility of erratic fluctuations. As such, tend doesn’t make sense for contracts.

Here are some examples drawn from that Lake Erie algae bloom of the contracts world, the SEC’s EDGAR system, adding to each my proposed replacement for tend (and leaving the remaining dysfunction untouched):

The Warrant Agent shall not be under any obligation to take any action hereunder which may tend [read might or is likely to] to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.

… or otherwise publishing (whether in writing or orally) statements that tend to portray any of the aforementioned persons or entities in an unfavorable light …

Lessee shall not use or permit the use of the Premises in any manner that will tend to create [read creates] waste or nuisance or, if there shall be more than one tenant of the building containing the Premises, which shall tend to disturb [read disturbs] such other tenants.

Each party represents and warrants to the other party … that it is free of any obligations that would prevent or tend to impair [read prevent or impair or might prevent or impair or would likely prevent or impair] the full performance of its obligations hereunder.

Posted in Selected Usages | 2 Comments

  • AWrightBurkeMPhil

    Ken: When you doctor EDGAR selections, you should make clear that you are patching only the item under discussion, not the whole passage, lest a reader think you are asleep on the job.

    That first example (48 words) can easily be slimmed to 25: “The Warrant Agent need not take any action that it reasonably believes will involve it in expense or liability that no one will promptly pay.” –Wright

    • http://www.adamsdrafting.com/ Ken Adams

      Thanks. I revised the post to address this.