Generally it’s a bad sign when one talks about dreams, but bear with me.
This morning I woke with a start. In my sleep I had been running through verbs in my mind. When it was the turn of abstain, what’s when my eyes popped open. Of course! Why hadn’t I thought of abstain before! I reached for my laptop. With no person from Porlock to interfere, here we are.
What we have with abstain is another effed-up categories-of-contract-language verb structure: abstain from.
One function it serves is as an alternative to shall not in language of prohibition. And now, the examples from EDGAR, please *drum roll*:
So long as the Executive is a member of the Parent Board, he shall
abstain from participationnot participate in the deliberations of the Parent Board with respect to the Annual Discretionary Bonus.As a condition to your being furnished such information, you agree to treat any information, in any form or medium, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or
abstain from takingnot take certain other actions herein set forth.The Debtor shall preserve the Collateral, keep the Collateral in good repair, subject to ordinary wear and tear, and
abstain fromnot commit and not permit the commission of waste with regard thereto.Shall
abstain fromnot enter into transactions for their own personal accounts or for the account of any client, in any security while in possession of MNPI regarding that security; and …
It’s also used in language of discretion instead of is not required to:
The arbitrators shall consider this Agreement as an honorable engagement rather than merely as a legal obligation, and they are relieved of all judicial formalities and
may abstain from followingare not required to follow the strict rules of law.It is agreed that the Lender
,without exonerating in whole or in part the Guarantor, may grant time, renewals, extensions, indulgences, releases and discharges to, may take securities from, and give up or release any or part of the securities held,may abstain from taking, perfecting, registering or renewing securities or from realizing onis not required to take, perfect, register or renew securities or realize on securities …
When not used as the main verb, abstain from is used simply to express negation:
For so long as this Agreement remains in effect, each Stockholder shall vote any and all Shares held by it from time to time, and shall use its reasonable efforts, to the extent permitted by law, to cause the several members of the Company ’s board of directors (the “Board of Directors”) to vote, so as … to cause the Company to act or
abstain from actingnot act, in accordance with all the provisions of this Agreement .Subject to the Company affording Executive a reasonable ability to cure a purported Cause Capable of Cure, after the Company gives Executive notice of termination for Cause and prior to termination of employment becoming effective, the Company may, in its sole discretion: … (iii) require that Executive
abstain from takingnot take any action as a director of the Company or of any affiliate, provided that Executive shall continue to be paid his Base Salary during such period of time.By its acquisition of an interest in a Bail-inable Security , each Holder or Beneficial Owner of that Bail-inable Security shall be deemed to acknowledge and agree: … (2) to the extent permitted by the Trust Indenture Act, that such Holder or Beneficial Owner waives any and all claims, in law and/or in equity, against the Trustee, for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or
abstains from takingdoes not take, in either case in accordance with the Bail-in Regime; and …Not to give any third party any acknowledgement that the Tenant enjoys the access of light to any of the windows or openings in the Premises by the consent of such third party nor to pay such third party any sum of money nor to enter into any agreement with such third party for the purpose of inducing or binding such third party to
abstain from obstructingnot obstruct the access of light to any windows or openings …… provided however, if for any reason said California Federal District Court does not have or
abstains fromdoes not or otherwise declines to exercise jurisdiction of an action seeking Binding Arbitration Relief, the parties thereafter consent to the commencement and maintenance of an action to enforce Binding Arbitration Relief in San Diego Superior Court …
So go and abstain from no more.
One of my drafting rules of thumb is the ‘good enough’ rule: if a longer formula hits the nail on the head, and a materially shorter formula does a less than perfect but good enough job in the circumstances, use the shorter form. That brings me to the same conclusion you reach: ban ‘abstain’ in favor of simple negation.
Yet there is a shade of difference between ‘to abstain from smoking’ and ‘not to smoke’. Abstention has a whiff of holding oneself back, of voluntarily doing without, of deliberately refraining. Mere negation lacks that whiff.
Since I can’t think of a contract provision where the nuance would matter, I’d go with mere negation as the conciser choice.
And now an old quibble: ‘is not required to’ is (a) the bad kind of passive, and (b) misclassified.
It’s the bad kind of passive because the omitted by-agent matters.
If the omitted by-agent is the contract itself, the provision should say so, as in the following:
(1) ‘This agreement does not require Acme to deliver during Off Hours’;
(2) ‘Acme does not by this agreement assume the Excluded Obligations’;
(3) ‘Nothing in this agreement requires any Lorry Driver to exceed any posted speed limit’.
If the omitted by-agent is an extracontractual entity, the contract should also say so:
‘Widgetco acknowledges that UK law does not require Acme to permit Widgetco to sublicense the Intellectual Property’.
For being inappropriately passive, ‘is not required to’ should be banned.
As for misclassification, I know ‘is not required to’ is ‘parked’ in language of discretion for convenience, but no instance of ‘is not required to’ ever confers discretion. Language of discretion confers authority to do a thing without imposing a duty to do the thing: ‘Teachers may carry concealed weapons in class’.
By contrast, ‘is not required to’ confers nothing. It is always a mere observation about a particular absence of duty: ‘Teachers are not required to carry weapons in class’. (Background law or another part of the contract may forbid teachers from ‘packing heat’ in class, so they have no discretion to do so.)
The no-duty observation often serves to clarify a limit on a duty the contract imposes: ‘The Painter shall paint the Houses on the north side of the Street, but the Painter is not required to paint any such House officially marked “Quarantined for Plague”‘.
Therefore, ‘is not required to’ fits the definition of no existing MSCD category of contract language. (‘Language of lack of obligation’ is but a fiat away.)
To the extent a contract should contain no language not belonging to a category of contract language, ‘is not required to’ should be banned on that head as well.
All my opinions are humble ones. I’m often wrong and when wrong, always grateful to be set right. ‘Ego is rubbish’. Ken, you run a wonderful blog. Thanks for it.
AWB:
In lieu of “is not required to,” I use “need not.” But that’s mainly on grounds of brevity. It is a touch archaic. It also doesn’t address your core concern that the language doesn’t differentiate between a grant of permission and a limitation on an obligation.
Chris
Chris: I like ‘need not’ too, because it’s brief and hides (but does not cure) the flaws of its wordier twin ‘is not required to’. Are you not troubled by its failure to belong to any category of contract language? –Wright
Wright:
If I had the stamina to have written Ken’s book, I probably would have distinguished between language of permission (where the other party has the right to prohibit the act) and language of discretion (where the other party has no right to prohibit it). I suspect that’s the pedant in me, though; and I would worry about situations where there’s a mix or the purportedly permitting party’s right to prevent the act is contested.
And ultimately, I didn’t write it, so I’m happy enough to pretty-much go along with the only objective standard out there.
Chris
Duly noted!