I’m back at Notre Dame Law School, teaching an intensive course in contract drafting—one semester crammed into just under three weeks.
As usual, the categories of contract language—my term for how verb structures determine function—is taking a lot of our time. To help my students become familiar with this topic, we looked at some problematic sentences and considered alternatives with more effective verb structures.
Here’s one of the more-effective alternatives we considered:
To dispute an invoice, Jones must submit a Dispute Notice no later than five Business Days after delivery of the related invoice.
This sentence is language of obligation used to express a condition. It features must (instead of shall), plus an introductory clause that makes it clear what the context is.
One of my students, Ryan Evans, wondered whether we could instead use language of policy, as follows:
A Dispute Notice submitted more than five business days after delivery of the related invoice will be void.
Language of policy is used to express the ground rules of a transaction, as opposed to provisions governing what parties have to do, may do, or are prohibited from doing. Ryan’s suggestion offered a useful reminder that to address an issue, often you have a choice from among alternative categories of contract language.
But invariably one category works better than others. For one thing, the sentence Ryan offered doesn’t mention the parties, so it’s one step removed from expressing what the dynamic actually is.
Furthermore, you’d have to add another sentence in front of it:
Jones may dispute an invoice by sending Acme a Dispute Notice. A Dispute Notice submitted more than five business days after delivery of the related invoice will be void.
Addressing this issue with language of obligation used to express a condition requires 28 words; using language of discretion plus language of policy requires 39 words.
So all told, the winner is … language of obligation used to express a condition. But this serves as a reminder that choosing between categories of contract language sometimes requires you to make a judgment call.