The following sentences express the same meaning:
If it receives Acme’s prior written consent, the Vendor may cause one or more subcontractors to perform Services.
Unless it receives Acme’s prior written consent, the Vendor shall not cause any subcontractors to perform Services.
Which would you be inclined to use? Would your answer vary depending on which party you represent?
4 thoughts on “Whether to Use Language of Discretion or Language of Prohibition to Express an Action that Is Subject to Consent”
Vendor shall not cause any subcontractors to perform Services without Acme’s written consent. Because it states the prohibition in affirmative terms and first.
This would be the case whether I represented Acme or Vendor.
I think that this one is easy: The prohibition expressed by the second sentence reflects the parties’ intention. The first sentence gets to that point only by negative – and sometimes uncertain – implication.
When I say to my children, “If it rains, you can stay inside and bake cookies,” the real meaning may be either of the following:
a. “Unless it rains, you may not stay inside and bake cookies.”
b. “It’s too bad that you won’t be able to ride your bike if it rains, but at least you can stay inside and bake cookies. Of course, you can stay inside and bake cookies even if it doesn’t rain.”
I assume that a court would read the negative implication into your first example, but why take chances?
Unless I were deliberately seeking ambiguity, my answer would be the same regardless of which party I represented.
Jim: Very interesting! If I could paraphrase your argument using lingo I’ve aired in this blog previously, going with my second example would preclude any debate over the expectation of relevance, with the Vendor arguing that because it’s been granted discretion in one context doesn’t mean it doesn’t have discretion in another context.
In this case, there’s no way on earth a court could conclude that the Vendor may subcontract if it doesn’t have Acme’s consent. But even the theoretical possibility of debate on the subject means that I, too, now opt for the second example.