“Unless the Context Otherwise Requires”

Posted on June 6, 2007 by Ken Adams

Here are some examples, drawn from the SEC’s EDGAR database, of provisions containing the phrase unless the context otherwise requires:

Unless the context otherwise requires, capitalized terms used in this Agreement have the following meanings.

Unless the context otherwise requires, references to the “Company” shall be deemed to refer to the Company and its Subsidiaries.

Each of the representationsand warranties of the Loan Parties contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions, unless the context otherwise requires.

Except as otherwise expressly provided herein or unless the context otherwise requires, all references to the singular shall include the plural and vice versa.

It’s always a bad idea to use this phrase, as all it does is add wiggle room that an astute litigator might be able to take advantage of. If in a contract you want to deviate from some across-the-board convention, do so explicitly.

Posted in Uncategorized | 2 Comments

  • Max

    Without carving out contextual capitalization (like at the beginning of a sentence), how does a drafter get around the inaccuracy of the statement that "Capitalized terms used but not defined in this Agreement will have the meanings ascribed to them in the _____"?

    • http://intensedebate.com/people/adamsdrafting Ken Adams

      Max: It's hard to imagine how that provision were to create problems if you were to leave off "unless the context otherwise requires." And maybe it would be better to use "Defined terms" instead of "Capitalized terms." Ken