A Time of Day Constitutes a Boundary Between Periods of Time

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. That might be why so many contracts use “12:01 a.m” and “11:59 p.m.” as deadlines, rather than “midnight,” the implication being that when you state a time of day, you’re in fact referring to a minute-long period of time. That’s illogical. (Of contracts filed on the U.S. Securities and Exchange System’s EDGAR system in the past year, 467 contracts use “12:01″; 678 use”11:59”; and 452 use “midnight.”

It might be that drafters use “12:01 a.m” and “11:59 p.m.” so as to avoid the ambiguity in “midnight”—every day has two midnights, so if you just say “midnight,” it wouldn’t be clear which midnight you’re referring to.

But you can resolve that ambiguity by saying “midnight at the end of” or “midnight at the beginning of” the day in question.

And more to the point, 114 contracts filed on EDGAR in the past year use “5:01,” even though “5:00 p.m.” and “5:00 a.m.” aren’t subject to the same ambiguity as “midnight.” That suggests that many drafters who use “12:01” and “11:59” are in fact doing so because they think that a time of day refers to a minute-long period of time.

So if you’re lopping a minute off or adding a minute on your contract deadlines, I suggest that you stop doing so. It doesn’t make sense, and it risks muddying the waters for the rest of us.

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.