Once More, With Feeling: A Condition Doesn’t Make Sense if It Can Be Ignored

Here’s what I said in this 2014 post:

[I]f a party that is subject to a condition is in a position to act as if the condition has been satisfied even if it in fact hasn’t been satisfied, should the issue in question instead be stated as an obligation?

My answer was yes, it should.

This issue is subtle enough that I thought it worth revisiting. This is from the the Google services agreement I critiqued in this 2014 post:

… except that any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent …

The first point is, what’s up with will require? Is it stating a condition or an obligation? Who knows.

Could I state this as a condition to settling? Yes, but that wouldn’t make sense: there’s nothing preventing Party A from not bothering to get Party B’s prior consent and entering into a settlement that admits liability or requires Party A to pay money.

I could instead state it as an obligation:

A party that wants to settle a dispute shall obtain the prior written consent of the other party before entering into a settlement in which it admits liability or or pays, or assumes an obligation to pay, the other one or more parties to that dispute an amount in settlement.

But I think it has more teeth stated as a condition to indemnification:

A party will not be required to indemnify the other if the party seeking indemnification settles that dispute without the prior consent of the other party and in doing so admits liability or pays, or assumes an obligation to pay, the other one or more parties to that dispute an amount in settlement.

So there you have it. It ain’t easy. Get your semantic acuity on.

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.