In the post before this one, I consider, among other sentences, Acme is not prohibited from selling the Widgets. I’ve now changed my mind about how it should be treated.
This story begins with my saying Nothing in this agreement prohibits Acme from selling the Widgets. Then, I added this to the fifth edition of MSCD: “Use is not prohibited from to express absence of prohibition. … Except to avoid confusion, don’t use the wordier this agreement does not prohibit Acme from or nothing in this agreement prohibits Acme from.
But something was nagging at me, and I think I’ve figured it out. The absence of prohibition isn’t accomplished by the contract; instead, it’s a state of affairs deduced from what isn’t in the contract. So this issue should addressed using not language of discretion, but language of declaration. The function of language of declaration is to allow parties to make statements of fact. In this case, we don’t want one party to make a statement of fact regarding matters under its control. Instead, we want both parties to acknowledge what they’ve deduced from what isn’t in the contract.
That could conceivably be accomplished by saying The parties acknowledge that Acme is not prohibited from selling the Widgets. But because the absence of prohibition isn’t derived from the contract, that sentence could be understood as meaning that Acme is not prohibited in any way from selling widgets. That’s too broad. So here’s where I end up: The parties acknowledge that nothing in this agreement prohibits Acme from selling the Widgets. In effect, one step back (what I added to the fifth edition), two steps forward (this blog post).
What do you think?
