Does the word actual have a role to play in contracts?

Sure, when it’s used to draw a contrast with some other attribute:

  • any actual or alleged damage
  • their actual or potential adverse impact

Or when a word arguably some other, non-actual meaning. Referring to actual knowledge is appropriate to avoid anyone suggesting that you’re referring to imputed knowledge.

But actual also serves as padding, in contexts where the reader doesn’t need to be told that one isn’t dealing with the metaphysical:

  • any actual and reasonable costs
  • permits in Seller’s actual physical possession
  • a copy of the actual proposed Lease
  • once actual statements for the month of Closing become available
  • before the actual taxes and special assessments payable during such year are known
  • in each case for the actual number of days elapsed

I assume that the same applies to actually, but that’s for another day.

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.

2 thoughts on ““Actual””

  1. Sometimes ‘actual’ isn’t padding, but just a poor word choice for something more specific, like ‘out-of-pocket costs’ as distinct from ‘statutorily recoverable costs’.

  2. Ken, in defense of actually, we are bombarded with claims for costs that are not actually incurred – or more accurately, might be apportioned to their project from central pool of head office costs. Our clients generally refuse to pay on the basis that no such costs are ‘actually’ incurred. Similarly, our share of savings provisions require a share of ‘actual’ savings, to avoid claims for a share of theoretical future savings (e.g. recently, a 5% more efficient motor x savings over 40 years = $10m claim). While there may be a better word, ‘actual’ has had some virtues from my perspective.


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