During our conference call about the 2008 Penn Law redrafting project (see this blog post), the company lawyers noted that I had elected to refer to the other party as the Vendor rather than simply as Vendor.
I explained that I prefer using the definite article, as it results in prose that’s slightly less stilted (see MSCD 1.73).
The company lawyers then explained that a previous version of their template had used the Vendor, but that they had decided to eliminate it. They said that it’s commonplace for a given vendor to decide, for whatever reason, that it doesn’t want to be referred to by means of a generic defined term, so it will use search-and-replace to change the generic defined term to Acme, or whatever its name might be. When the company’s template used the Vendor, it was commonplace for the vendor to omit the definite article from the search-and-replace, resulting in a contract full of references to the Acme. To avoid having to routinely do the cleanup required by such references, the company elected to switch to Vendor.
Has anyone else had a similar experience?
Ken:
Yes, I’ve had this experience. I use Vendor, Customer, Client and/or any other definition titles for one of the parties without a definite article. I do this because when I read a defined term, I’m swapping out the definition for the term.
Having the definite article, then, creates the problem voiced by the company lawyers to whom you were talking.
The same is true for “Services”, by the way. I only use a definite article here when I have a situation where I distinguish between the defined Services, and any add-on “services” (lower-case) that aren’t included in the definition of Services. In such a case, “Vendor will perform Services and the services required to xyz…”
Another problem in selecting a defined term is the term’s use in other contexts. I used to work with a form that called the vendor “Contractor” and frequently had to go back and clean up the provision on subcontracting to take out all the references to the “Subacme.”
Of course none of this is really a problem with the selection of defined terms or use of the definite article, but rather a cry for more thoughtful use of global search and replace.
Jeff: I think your quibble is a semantic one—that if Vendor is the only word in quotation marks, then the definite article is necessarily not part of the definition. That doesn’t cause me any concern.
By contrast, the issue pointed out by the company lawyers was a matter of careless word-processing.
Ken
Steve: Thanks for pointing out that glitch. If anything, it militates in favor of using the definite article, as replacing the Contractor with Acme would leave untouched any references to subcontractor. Another way to avoid that problem would be to use the “match case” function in search-and-replace.
Incidentally, note that reversing that change—replacing Acme with the Contractor—can result in a different kind of glitch, manifested most often by mid-sentence references to The Contractor, with a capital T.
Ken
I am a Chinese lawyer providing legal services to foreign investors into China. I got to know this website through Ken’s MSCD book.
I ran into this problem TODAY! The “the Acme” problem caught me today! But I was careful enough and got them corrected manually.
I am a company lawyer and see this frequently, both with our forms and when we use those of our customers and suppliers. As for the “careless wordprocessing” comment, the issue for me is that if the attorney, contract manager or business person for the other side initiates this mistake, then I must take the time to correct it. I use Vendor to help minimize the chances of additional cleanup, and I see no downside.
I have experienced Jeff’s problem and Ken’s, but it was capitalizing the article that made the difference for me. Sloppy word processing? Sure, but there is something to be said for being able to modify documents quickly with a minimum or proof reading and revision. To me, the elegance of using the article does not justify the additional risk of error and delay. Also, every now and again a client will impose an arbitrary limit on the number of pages. Omitting the article allows a shorter document.
I find it creates too much redlining when I swap out “Vendor” with my client’s name. More often than not, my client does not want to give the appearance of a heavy redline, so I don’t sweat this one.
When I draft template documents, eliminating the “the” results in a shorter document, which is a big plus.
Hi to everyone… I’ve also experienced this issue serveral times… of course I agree in that not using the definite article makes a shorter document. I really don’t see a fundamental difference.. in fact, I recall a fellow lawyer who was “scolded” by both of his bosses, one of them said he should use the definite article and the other said he shouldn’t!!! Best Regards!
Documents should be easy to read wherever possible, and the use of “Vendor” alone as unnatural and awkward. If you have a 1,000 page contract, fine – no one will read it anyway, so make life easy. But in anything under 100 pages, you can use the magic of your computer to look at every example in about two minutes and make your document better for it.
And when converting from “the Vendor” to “Acme”, a global change will work in any case, as it will ignore the initial capitalisation of “the”. I really see no issue there. If it is a question of clients changing things incorrectly, just replace-all “the Acme” with “Acme”. It takes 10 seconds!
Ken, my own approach to the “name” definitions issue is this: if the entity is capable of “acting” in the context of the contract, e.g., a bank, a corporation, the seller, an escrow agent, etc., I prefer to discard the article. This certainly applies to natural persons, of course.
Where, however, the noun is incapable of “acting”, e.g., a bill of sale, a deed, a note, a release, etc., I add the article. I think this distinction makes the contract flow better.
Thus, “Whenever Bank notifies Buyer that Buyer is in default under the Note (the “Notice”), Buyer shall respond in writing to both Seller and Bank as to whether Buyer intends to cure the default. Buyer’s response must be delivered by Buyer within a five-day period that begins with the date on which Buyer receives the Notice and ends at 5:00 PM, New York time, on the fourth day after the date on which Buyer receieved the Notice.”
Of course, this is a general “rule”. Depending on the specifics, the rule must be disregarded. For example, if there are a number of banks, one might prefer to say, “…the Banks.” However, I certainly could live with “Banks”.
As for personalizing the actors, e.g., Acme, the reader could become confused as to just who Acme is when the contract also names the escrow agent, transfer agent, and guarantor as Bendix, Carlyle,and Hoover,respectively. LMBell
LMBell: Your distinction perhaps goes without saying: it would be very odd to omit the definite article when you’re dealing with anything other than the defined term for a person or entity.
I think that dropping the definite article from a collective noun sounds even more stilted than does dropping it from a singular noun.
Whether to use a common noun or a defined term based on a party name depends on what kind of contract you’re dealing with. That’s something I discuss at MSCD 1.67.
Ken
Many of the common errors in a global search and replace in Word can be avoided in several ways.
The simplest, but least elegant, is by selecting “Match case” as a search option in Word. That would, for example, prevent the creation of “subAcme” when searching and replacing “Contractor”. As noted above, a second search for “the Acme” might solve the unwanted pronoun problem, but there are places where you might want to retain the pronoun (e.g., “the Acme notice must contain…”).
When authoring a template document, however, there are several ways to have the document automatically replace generic names with custom names – without running a global search replace at all. These methods avoid the errors in a global replace function – but they also require more sophisticated knowledge of Word and they take more time to set up. For that reason, the techniques make the most sense if you are creating a template that will be used repeatedly.
Bookmark Terms — The drafter can create a Word bookmark using the defined term. To do that, select the text between quotes “Company” and then Insert a Bookmark that you name Company. At each place the term Company is used in the document, the drafter replaces the text with an automatic Bookmark cross-reference that grabs the original bookmarked text and inserts it at the cross reference. When you change “Company” to “Acme”, the document simply updates the cross-references. (If you inadvertently delete the bookmark when you replace Company, you simply select Acme and redefine the bookmark as Company.) If you need to make the term possessive, you simply follow the bookmark cross reference with apostrophe s.
The foregoing is similar to using automatic cross references for a Numbered Item (which allows the insertion of the paragraph number, page number, paragraph text, etc.) – but the author chooses “Bookmark” as the Reference Type, rather than choosing “Numbered Item.”
Style Reference Terms — Another approach is to format the defined term (e.g., “Company”) with a unique Word font style or Word paragraph style. At each place that the defined term is used in the template document, the author replaces the text with a StyleRef field code that grabs from earlier in the document the text with the related “Company” style and inserts that text at the field code. So, if you replace “Company” with “Acme” in the first place you defined the style, the document will automatically change the term in all the places where the field code is used.
Using the latter two approaches, one could simply leave the generic term “Company” and that word would appear at all the cross referenced locations. One could also insert the pronoun between the quotes (“the Company”) and have the pronoun appear before the defined term at all of the cross refenced locations.