The language of contracts in English is basically the same the world over, but with local variations. In the course of my work for LegalSifter this week, I learned of one such variation—the English affinity for the word, uh, variation. Or more specifically, the combination amendment or variation. Actually, it’s not only the English who indulge in this: you see the section heading Amendment or Variation in contracts from other Commonwealth countries too.
To find out more about variation, I consulted, of course, Mark Anderson & Victor Warner, A–Z Guide to Boilerplate and Commercial Clauses, specifically the section entitled “Amendment or variation.” It doesn’t explain use of both amendment and variation. Sometimes it uses amendment or some form of the verb amend, and sometimes it uses variation or some form of the verb vary, but mostly is uses both, with “vary or amend” here, “amendments and variations” there, and so on.
Further rooting around confirmed that amendment and variation, and amend and vary, are generally treated as synonyms.
When it comes to the how-to-say-it part of drafting, Mark’s writings generally reflect the way things are. I, on the other hand, dream about the way things should be. And with that hat on, I now say stop using variation and vary!
Why? Because synonyms are a source of waste and mischief in contract drafting. For one thing, they result in your adding unnecessary words to contracts. Furthermore, the urge to split hairs is endemic in the law: if enough is at stake, watch lawyers find ways to argue that synonyms are in fact not synonyms.
And if we’re getting rid of synonyms, it’s clear which of amendment and variation has to go. In standard English, if I make a variation on something, it means I’ve created something new that is different from the original in some way. It does not mean that I’ve modified the original. That’s what amendment means.
So enough with variation already.
Incidentally, in this newsletter, the law firm Pinsent Masons accepts the general use of variation but observes that in construction, amendment refers to changing the provisions of a contract and variation refers to changing the instructions regarding the work to be performed. I suggest that it’s best not to seek to apply a narrow meaning to a word that has a broader, unhelpful meaning. In this context, I’d use change order instead of variation.
Anent the diplomacy of commenting on the other side’s draft, might one avoid the danger of both synonyms and tactlessness by saying not (a) below, but (b).
(a) Suggest removing as redundant the phrase ‘and variation’ whenever it follows the term ‘amendment’.
(b) Suggest adding a definition: ‘Variation’ means ‘amendment’.
If you suggest (b), the other side may well respond, ‘That’s silly. Why don’t we just yank out “and variation” wherever it occurs?’
The late Dale Carnegie advised, ‘Let it be the other person’s idea’.
I’ve seen the use of both terms applied by a client in their contract forms in order to categorize who has authority to alter or approve the changes discussed (an “amendment” required full legal review – tending to be changes to general T&Cs or the nature of “the deal”, while a Variation could be agreed by the “business” function, as it referred to pricing, quantities or timing of delivery of goods or services i.e. it was a variable in the originally contemplated nature of the “the deal”).
Given lengthy and cumbersome approval processes, the distinction undoubtedly allowed better business and legal team responsiveness, as it alleviated a previous requirement for legal review of non-legal changes.
That’s analogous to the distinction I refer to in the final paragraph of my post. I think change order would be the clearer term to use.
Ken, with apologies, I merely observe that in my experience in construction law, the expression ‘change order’ is used in maybe 2 or 3 countries, while ‘variation’ is used in… the rest of the English speaking world, including the de facto international standard FIDIC contracts.
FWIW I’ve rarely if ever seen ‘vary’ in the context of amendments.
OK, when it comes to variation versus change order in construction, I hereby concede :-(