A Case Study in Eliminating a String of Nouns from a Contract

Consider the following (emphasis added):

This agreement is personal to the Employee. The Employee shall not assign any of the Employee’s rights or delegate any of the Employee’s obligations under this agreement to any other person, except that the Employee may assign the Employee’s rights under this agreement to the Employee’s personal or legal representatives, executors, administrators, heirs, distributees, devisees and legatees.

If you’re like me, you will have gagged on reaching the string of nouns at the end. Such strings are utterly standard in contracts, but in the right circumstances you can, with a bit of thought, eliminate them, thereby making life easier on the reader and reducing the risk of confusion. I think I’ve succeeded in doing so in this instance.

First, lets consider what Black’s Law Dictionary gives as the definition of each of those nouns:

  • Legal-personal representative. “When used by a testator referring to personal property, an executor or administrator. … When used by a testator referring to real property, one to whom the real estate passes immediately upon the testator’s death.”
  • Executor. “A person named by a testator to carry out the provisions in the testator’s will.”
  • Administrator. “A person appointed by the court to manage the assets and liabilities of an intestate decedent.
  • Heir. “A person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property. … Loosely (in common-law jurisdictions), a person who inherits real or personal property, whether by will or by intestate succession.”
  • Distributee. “An heir, esp. one who obtains personal property from the estate of an intestate decedent.”
  • Devisee. “A recipient of property by will.”
  • Legatee. “One who is named in a will to take personal property; one who has receive a legacy or bequest.”
Considered collectively, the last four words are terms of art used to refer to someone who receives property by will or intestate succession. The first three refer to someone who handles the paperwork, but they should be incidental.

So here’s how I revised this provision (new language in italics):

This agreement is personal to the Employee. The Employee shall not assign any of the Employee’s rights or delegate any of the Employee’s obligations under this agreement to any other person, other than by will or intestate succession.

The new version is much clearer, and shorter to boot (51 words versus 70). And what’s the moral of this story? If you insist on using terms of art rather than simply saying what needs to be said, your drafting risks remaining inscrutable and long-winded.

As usual, I’m prepared to have readers set me straight.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

8 thoughts on “A Case Study in Eliminating a String of Nouns from a Contract”

  1. Well done! The old version was a little bizarre anyway; it seems very strange to talk about a (presumably dead) employee “assigning” his or her rights to his personal representative, etc.

  2. Hmm. What about trustees? Employee might want her last paycheck to go into her trust rather than through probate. I’m not sure whether the original language would have accomplished that goal, though.

  3. Ken

    A good redraft but as a non-lawyer I’m still puzzled over why you didn’t make a few common-sense editing changes.

    Why not break it into two sentences. The first could be: This agreement is personal to the Employee. The rest follows from: The Employee shall not…

    Can lawyers avoid ‘shall’ (with cannot in this case). There’s so much written in plain English forums about the misuse of ‘shall’.

    Four mentions of Employee in one sentence becomes tiresome. Could we not replace one or two with pronouns?

    Isn’t ‘any part of’ redundant?

    Is intestate succession (I had to look it up) tautological? Wouldn’t ‘intestate’ alone be enough.

    I ran both the original and the redraft through our StyleWriter plain English software and your redraft was better. But it wasn’t rated as plain English.

    Nick Wright

    Designer of the StyleWriter plain English editing software.

    • Nick: This title of this post refers to “eliminating strings of nouns”; it doesn’t say “and otherwise fixing up.” But I’m pleased that you made these suggestions. My observations:

      Two sentences? Sure.

      Regarding “shall,” the specialized nature of contract language means that “shall” serves a useful purpose. Yes, “shall” is drastically overused. And yes, I’m aware of much bleating regarding “shall,” for the most part offered by people who have little or no experience with contracts. For more on this, see the following post: http://www.koncision.com/revisiting-use-of-shall-in-contract-drafting/.

      Regarding use of “the Employee,” this language is from a template. It’s a nuisance to have to change gender-specific language depending on whether the employee is a man or a woman. Repeating the noun is an acceptable price to pay for avoiding that. For purposes of my automated document-assembly templates, it’s a simple matter to incorporate alternative pronouns, but when dealing with static language, I have to recognize that we live in a copy-and-paste world.

      Regarding “any part of,” getting rid of “part” would represent an improvement. But I think that “any of” serves a worthwhile purpose.

      I don’t think “intestate” by itself works. If anyone thinks otherwise, let me know.

      Regarding the rating offered by your StyleWriter, the specialized nature of contract language means that no one will every confuse it with plain English. That’s why I refer instead to “standard English.” That’s something I touch on in this post: https://www.adamsdrafting.com/2006/07/17/readability-tests-and-the-contract-drafter/. But I’d like to think that my stuff is by several orders of magnitude closer to plain English than is traditional contract language.

      I’ve revised the “before” and “after” versions to turn one sentence into two and remove two instances of “part.”

      Again, thank you for your suggestions.


  4. “The Employee’s rights and duties under this agreement are neither assignable nor delegable except by the Employee’s death.”

    Everybody dies either testate or intestate. “Here lies Lawyer Jones. He died as he lived, with a will.”

  5. @timhadley I don’t believe assignment to trust is an issue or appropriate. By declaring that the agreement is “personal” to the employee, it is not a trust asset subject to a trustee’s management, it’s one of those personal assets not funded to a trust during life because it’s value doesn’t trigger probate jurisdiction. So, the terms Ken came up with “other than by will or intestate succession” seem appropriate substitutes for the string of nouns and exceptions to the prohibition on assignment of employee’s rights.


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