A New Provision Specifying a Drafting Convention Relating to Time

When you encounter confusion in contract language, the thing not to do is to stamp your feet and insist that your interpretation is the sensible one.

The confusion I have in mind is whether a deadline of, say, 5:00 p.m. passes once you’ve entered the first second of the five o’clock hour or whether it ends after the last second of the first minute of the five o’clock hour. [Updated March 22, 2015: For an example of a dispute caused by this confusion, see this 2009 post.]

Here’s what I said about that in this March 2012 post:

Today I’d like to advance a simple but ill-understood concept: A time of day isn’t a period of time. Instead, it’s a boundary between the period of time that comes before and the period of time that comes after.

So if a contract states that a given deadline is midnight at the end of March 13, 2012, the deadline will pass once the last second of the 11:00 p.m. hour expires and the first second of the 12:00 a.m. hour begins. Midnight is the boundary between those two seconds.

It seems that many drafters don’t understand that.

I mentioned this issue briefly in my recent post on midnight, prompting this comment by A. Wright Burke. With the acuity that you’d expect from someone with an M. Phil. in morology from the University of Wiltshire, he says the following:

Unless a drafter makes clear that clock times expressed in hours and minutes are points and not 60-second periods, the possibility of legitimate confusion remains, even with the expressions ‘midnight at the start of (date)’ and ‘midnight at the end of (date)’, since those phrases are often understood as synonyms for numerical clock times.

It is surely not ‘delusional’ to reckon that it’s 2:00 p.m. till it’s 2:01 p.m., so that a deadline of 2:00 p.m. occurs at the *end* of 2:00 p.m. and at the *start* of 2:01 p.m. A Canadian trial court so held and was affirmed on appeal. So it’s the drafter’s job, as ever, to head off possible confusion.

I hereby accept that he’s right.

Wright offers as a solution the following provision specifying a drafting convention:

In this agreement, clock times in hours and minutes are points, not periods. A clock time refers to the point 60 seconds before the next minute. Midnight at the end of any date refers to the point at the end of the day. Midnight at the start of any date refers to the point at the start of the day. Noon on any date refers to the midpoint of the day.

Here’s my take on this [adjusted June 22, 2015]:

In this agreement, a statement of a time of day denotes not a period of time but a boundary between periods of time, occupying no time. For example, “midnight” denotes the boundary between the last second of one day and the first second of the next day; it does not denote the first sixty seconds of the next day.

But for such a provision to be worth including, you’d have to be concerned about the possibility that someone might attempt to deliver a notice, or submit a bit, during that one potentially contentious minute. I’m not sure how often that’s enough of a concern to be worth adding two sentences.

And if anyone’s going to fight over that, they might fight over who had the right time. Acme might claim that Widgetco stopped accepting bids thirty seconds too early! I invite A. Wright Burke to come up with a provision stating that whether a party meets contract deadlines is to be determined by reference to the time of day according to, oh, the National Institute of Standards and Technology.

Note that neither A. Wright Burke nor I propose stating times of day down to the second, as in 12:00:00. Using that convention would in effect involve accepting that a time of day is a period of time, albeit in this case a period lasting only a second; I’m not willing to do that. Furthermore, humanoids don’t state the time of day like that.

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.