Consider the following sentence: The Equipment will comply with the Specifications.
What category of contract language is it?
According to my categories-of-contract-language analysis, use of will would make it language of policy with respect to a contingent future event. But language of policy is only for the ground rules of a contract—stuff that applies, or happens, automatically. California law governs this agreement. This agreement will terminate if the market price of unobtanium exceeds $1.50 per gram. Equipment complying with specifications isn’t something that happens automatically. Someone has to make it happen. So language of policy doesn’t work.
Here’s one way you could handle this: Acme shall purchase from Widgetco 2,000 widgets that comply with the Specifications (the “Equipment”).
You could also, or instead, say If the Equipment does not comply with the Specifications, Widgetco shall …
Applying categories-of-contract-language analysis helps you address an issue in a way that makes sense.
Although not literally couched in the passive voice, the sentence suffers from the principal weakness of the passive in that it doesn’t say who is supposed to do what. Your first alternative makes it look like it’s Acme’s responsibility to buy conforming product rather than Widgetco’s obligation to provide them that way. “Widgetco shall cause the Equipment to comply with the Specifications” is one way to make that point, or, if the context clearly indicates we’re talking about Widgetco’s responsibilities, “The Equipment must comply with the Specifications.” In either case, what the buyer really wants to know is that Widgetco is responsible for making the equipment comply with the specs. The consequences of breach would usually come somewhere later in the warranty provisions, no?
Vance:
Absent any introductory text, “The Equipment must comply with the Specifications” makes me think its a condition, and I’d be looking for what happens if the condition fails. So that smells like ambiguity to me, even if it is clear that it is Widgetco’s responsibility to fulfill the condition.
Chris
I agree with Vance. The first offered “better” statement is confusing. It seemed to me to be putting the obligation on the purchaser. If we want to say Company A is obligated to supply Party B with a part that complies with a particular spec, then just say so.
Also want to point out that this is an interesting topic, but incomplete in terms of real-life. In many construction and manufacturing contracts where the product to be delivered by the seller is complex or sophisticated (or both) and the buyer has a right to reject the product (or any part in it) if it does not meet spec, sellers typically shy away from even going down the path of an obligation to meet spec. As an example, assume purchaser’s acceptance requires seller to achieve “substantial completion” (let’s say they are two criteria: (1) product must be delivered by a given date; and (2) product must meet certain performance guarantees). Assume seller meets these two conditions but in the performance testing process it is discovered that a key component flows at a rate of 0.02 instead of what’s called for in the spec(0.04). Although seller has met the conditions for substantial completion and this discrepancy has no effect on product integrity or performance, the key component does not meet spec and, by definition, purchaser has a right to reject. While this is a very basic example for keeping this post to a reasonable length, the situation itself is not fiction – my former company experienced this exact claim on more than 1 occasion and, as a speaker at a large national conference, I raised this topic and was surprised at how many other’s in the audience that worked for major players in the industry had similar stories.
So, from this perspective, on a macro level, it would be nice to discuss the entire topic – clear language that would address the need for a product to meet spec / clear language for seller to provide product assurance without tying it to spec.
BTW – is there a way to get notices in my email inbox when there is a new post to this or any other thread I would like to follow? Thanks.
Peter
This could also be addressed through a definition, e.g. “Widget means an item that confirms to the Spefćifications.”
Interesting, but too indirect for my liking.
The post seems to muddle two questions:
1/ To which category of contract of contract language does the text ‘The Equipment will comply with the Specifications’ belong?
2/ What’s the best way to express the idea at which that text seems to aim?
The post doesn’t answer the first question. It considers and rejects language of policy. The implied answer is ‘the text belongs to no category’.
The answer to the second question (how best to say it) depends on what the drafter means to do.
If we speculate that the drafter means to put a duty on Widgetco to deliver Equipment that meets certain specifications, ‘maacl’ is on a good track: bake the specifications — or a reference to them — into the definition of ‘Equipment’ (language of policy), then say ‘Widgetco shall deliver the Equipment’ (language of obligation).
Ken:
Presumably, if this was statement number umpteen in an article that begins, “Seller states [or represents, or warrants, or represents and warrants, or whatever] as follows:” then it would be that odd thing that many people think of as a warranty of future fact (and that I prefer to replace withe a promise).
Chris
Yep, except that “promise” isn’t a word I use in categories-of-contract-language analysis.
Ken:
Fine, thou picker-of-nits: language of obligation.
Chris