In this post I discuss “needless elaboration”—the tendency of drafters refer to a given set, then refer to subsets that compose all or part of that set, even though there’s no question as to the boundaries of that set. I give as an example use of the phrase at law or in equity.
I’d like to tweak my definition by replacing the word “then” with “and,” because the needless elaboration can occur before the reference to the main set.
For example, consider the following provision:
Acme is reponsible for all taxes, duties, and other charges imposed by any federal, state, or local governmental entity with respect to any Services.
One of my students recently suggest that in this provision the words “federal, state, or local” represent needless elaboration, and I’m inclined to agree with him. Using instead “any governmental entity” would not only be more concise, it would also be more comprehensive.
Any objections?
I am in your camp, but I’m sure it will bring out of the gallery those who believe needless elaboration continues to serve a point, that of educating the reader about what the ‘set’ actually means in practice.
I have argued that if people need education about what ‘any government entity’ means (for example), we should provide that education outside of the four corners of the contract (and in a manner that won’t cause the extra-curricular educational document to become incorporated into the contract, thereby missing the point of the exercise). Counter-arguments to that strategy are that nobody wants to do the ‘extra work’, or that the extra piece won’t get read but the contract will–Thus, put the ‘education’ into the one document that we know will get read and that we have to do anyway. (Thus, a document probably gains at least 10-20% extra weight…)
I agree that needless elaboration is problematic.
However, with respects to enumerating taxes, this isn’t necessarily needless. I don’t want all of the various taxes which MAY be imposed by ANY governmental entity. In fact, as a buyer, I only want to pay very specific taxes (namely, sales and use taxes only).
I don’t want to pay (nor, for a 100% US transaction, SHOULD I pay, ad velorum, value add, or other “governmental” but non-US governmental taxes). But by saying “all governmental”, I’m opening the door to paying for the seller’s various taxes that they incur as a result of making the good, shipping it to me, etc.
This is also very important in the realm of telecommunications “taxes.” Lots of things on your phone bill fall under the heading of a tax… but the truth is that very few of them are supposed to be paid by the end user. The phone company, however, is allowed to pass them along to the end user if the end user doesn’t object. So, guess what they do?
Thus, while I do believe in elimination of needless elaboration, perhaps another example would be better?
Jeff: What you say isn’t an argument in favor of needless elaboration. Instead, it’s an argument in favor of contract language that’s narrowly tailored to accomplish a given goal. You don’t want to be responsible for all kinds of taxes? Then specify exactly what taxes you’re willing to be responsible for. You don’t want to be responsible for taxes of all jurisdictions? Then specify those jurisdictions that do apply.
Needless elaboration is antithetical to that kind of drafting.
Ken
I don’t think I made my point well. Let me recall the specific language you used: “Acme is responsible for all taxes, duties, and other charges imposed by any federal, state, or local governmental entity with respect to any Services.”
You contend that you should replace “federal, state or local” with “any governmental entity.”
I think you’re missing the reasoning for the use of “f, s or l” – it’s a concession between the parties when they want to include those levies that are actually imposed by a f, s or l governmental entity and not an international entity or one that is not really a governmental entity but simply another service provider charging a fee that they’re calling a tax.
I agree that we should be as specific as possible… but again, in the telcom world, it’s quite difficult (some would say impossible) to nail down all of the taxes that now exist (or will in the future) during the term of an agreement. So we look for some compromise in the language to afford the seller SOME coverage, without completely opening the door to every fee that every Tom, Dick or Harry can come up with that the seller would like to pass along to the buyer, calling it a “tax.”
Jeff: I don’t think you need to specify F, S, or L to preclude someone’s lumbering you with a dubious non-governmental charge. There shouldn’t be any question about whether or not a charge is being imposed by a governmental entity.
And if you want to exclude overseas governmental entities, the idea you’re seeking to exclude in “non-U.S.” I’m not sure that F, S, and L accomplishes that efficiently. For one thing, it’s not specific enough, as there’s no mention of the U.S. Secondly, it seems unnecessary to iterate the different kinds of U.S. governmental entities. How about saying “any governmental entity located in the United States”? I wouldn’t want to say “U.S. governmental entity,” as that might suggest a U.S. federal governmental entity.
This isn’t worth flogging to death. But the tendency to needless elaboration can manifest itself many times in a contract, and after a while it takes a toll on the reader.
Ken