I recently received the following inquiry:
I was wondering if you could clarify a point for me and my boss. It has been my understanding that when defining terms in an agreement, it is standard to use the word “together” when referring to two entities only, and to use the word “collectively” when referring to three or more entities. When I recently discussed this point with my boss and our other associate counsel, they had not heard of this approach, and they also pointed out that the common definition of “together” was not limited to only two entities. I did some research, but wasn’t able to find any clarification on this point. Am I wrong?
Here’s my answer:
No, I’m not aware of the distinction you offer. It reminds me of that red herring, the ostensible distinction between between and among (see MSCD 1.34). Both distinctions are at odds with standard English and don’t accomplish anything.
To distinguish collectively and together, let’s look at how they’re used.
Regarding collectively, here’s what MSCD 5.46 says:
If an integrated definition encompasses an entire string of nouns, you can help made that clear by adding the word collectively to the defined-term parenthetical, just before the defined term and after any language clarifying the scope of the definition (see 5.44): … relating to the confidential affairs of the Company, the Parent, and their respective subsidiaries and affiliates (collectively, the “Entities”).
If there’s any risk of the reader’s being confused about how far upstream a given collectively reaches, you’d want to clear up that uncertainty by “clarifying the scope” of the definition—adding a suitable introductory phrase to the defined-term parenthetical, such as each such entity.
As for together, here’s what MSCD 5.47 says:
You can supplement an integrated definition and thereby change the meaning conveyed by the defined term by adding appropriate language—generally using together with—to the defined-term parenthetical, just before the defined term and just after any language clarifying the scope of the definition (see 5.44) and the word collectively (see 5.46), if used: … the Companies’ officers, directors, financial advisors, accountants, attorneys, and other Affiliates (collectively, together with the Company, the “Company Group”). This manual refers to this practice as “boosting” a defined term.
If you were to use together instead of collectively, the reader would presumably understand what you were getting at, but that use would be inconsistent with standard practice. In fifteen minutes of rooting around in the “material contracts” filed on the SEC’s EDGAR system, I found only one instance of together used instead of collectively in a defined-term parenthetical:
THIS ASSIGNMENT OF ASSETS AGREEMENT (this “Agreement”) is entered into as of this 26 day of May, 2010, by and between Axius, Inc. (“Assignor”) and Geraldine Gugol and Leilane E. Macatangay (together “Assignee”).
I saw from the recitals that this contract is in effect a settlement agreement. Because they’re often drafted by litigators, settlement agreements are a good source of unorthodox usages.
Incidentally, I wouldn’t fix this example simply by using collectively rather than together. It’s of course clear from the defined terms that “Assignee” doesn’t include “Assignor”, but I’d want to make that clear as a matter of structure. I might say instead, “Gugol and Macatangay collectively, “Assignee”.