“Affirmatively” and “Affirmative”

Friends, I’m here to tell you that at least in contracts, affirmatively blows major chunks. It’s redolent of bureaucratic, jargony pseudoassertiveness.

In each of the following examples, obtained by dynamite fishing in the EDGAR lagoon, affirmatively is, uh, affirmatively redundant:

… an individual who becomes a Covered Employee shall be automatically enrolled in the Plan, and will make Participant Contributions at 8% of his Compensation, unless he affirmatively elects otherwise; …

… or (y) the Board of Directors of the Company (the “Board”) has affirmatively publicly recommended to the Company’s shareholders that such shareholders tender into such offer and has not publicly withdrawn or changed such recommendation.

The Recipient hereby affirmatively consents to the transfer between his or her employer and the Company of any and all personal information necessary for the Company and his employer to comply with its obligations.

How about affirmative? You mostly see it used with vote, as in the following examples:

Action by a Fund under (a) above may be taken either (i) by vote of a majority of its Trustees, or (ii) by the affirmative vote of a majority of the outstanding shares of such Fund.

… unless there shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of a majority of the entire membership of the Board …

This use of affirmative is redundant—if people vote for something, necessarily that vote is affirmative.

Here’s use of affirmative in a different context:

The Company will in no event be obligated to take any affirmative action in order to cause the delivery of any Restricted Shares to comply with any such law, rule, regulation or agreement.

No, it’s not that sort of affirmative action. Instead, it’s the bureaucratic kind, with affirmative serving no purpose.

Then there’s affirmative covenant, which usually occurs in headings:

SECTION 5 AFFIRMATIVE COVENANTS

Borrower covenants and agrees that, as long as any of the Obligations are outstanding, it will, and it will cause or permit Subsidiary Bank or any Subsidiary to, do the following:

According to Black’s Law Dictionary, an affirmative covenant is “A covenant that obligates a party to do some act; esp., an agreement that real property will be used in a certain way.” By contrast, a negative covenant is a covenant that requires a party to refrain from doing something. The word covenant is itself a turkey. It’s a synonym for obligation, and MSCD 3.131 says it “has a quaint Old Testament (or Raiders of the Lost Ark) quality to it.” It follows that you can always do better than affirmative covenant. Even using Certain Obligations as a heading would be an improvement.

So, no affirmatively, no affirmative.

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.