“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publicly recommended to the Company’s shareholders that such shareholders tender into such offer and has not publicly withdrawn or changed such recommendation.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:


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.

16 thoughts on ““Affirmatively” and “Affirmative””

  1. The expression “the affirmative vote of a majority of the outstanding shares of such Fund” does convey a particular meaning, that you need a “yes” vote from 50% plus 1 of all outstanding shares, rather than 50% plus 1 of a majority of the shares (which might be the minimum quorum at the meeting). I suspect you can rephrase this to avoid “affirmative,” but using just the word “vote” doesn’t clarify this point.

    • I had the same thought, but the objection seemed to go away when I added the words ‘adopted by’, as in ‘adopted by the vote of a majority of the outstanding shares of such Fund’. If there weren’t enough ‘yea’ votes, the resolution wouldn’t be ‘adopted’, it would fail. So the notion of ‘affirmative’ is contained in the word ‘adoption’, and needn’t be separately expressed.

      • I’m not sure how that helps. A vote can be adopted by a majority of the outstanding shares if that majority, being a quorum at a meeting, can adopt a resolution by a majority of those present and voting. What the original sentence wanted to say is that a majority of the outstanding shares actually has to vote “yes.” That’s different from a majority of a majority.

        • Took me a while to get it, but you’re right. Now I’m wondering why ‘affirmative’ is an objectionable way to achieve what the original sentence wanted to say.

    • I believe you’re mistaken: referring to vote of a majority of the outstanding shares is clear enough by itself. Black’s Law Dictionary has no entry for “affirmative vote.” If you want to convince me, you’ll have to bring in reinforcements.

      • If there are 1000 shares, and 501 shares (a bare quorum) vote on the resolution, 251 ‘yes’ and 250 ‘no’, the resolution is adopted by a ‘vote of the majority of the shareholders’ (=501 shares voted), but not by an ‘affirmative vote of a majority of the shareholders’ (=unanimous ‘yes’ vote of all 501 voting).

        That, at any rate, is how I interpret Vance’s comments, which persuade me.

        • No. For one thing, you’re forgetting a word: “outstanding.” Furthermore, leaving aside the fact that you don’t need the word “affirmative,” you’re asking it to perform a function that’s unrelated to what it flipping means.

          • I think you’re missing a nuance that Vance picked up. Start here: saying a share ‘voted’ doesn’t tell you whether it voted in favour or against. Therefore, ‘voted affirmatively’ isn’t redundant. Has Vance left the room?

        • OK, I now understand. But I don’t think it’s reasonable to interpret a reference to action by vote of a majority of outstanding shares as meaning that the action can be taken if the shares voted for and against equal a majority. By that standard, if all shares vote against the action, the action could still be taken. If you disagree, you’re arguing outstanding versus present.

          If I were expressing this concept, I might make the vote-for notion explicit. But I wouldn’t use affirmative.

          • Here’s a revision of the two ‘vote’ examples in the post that omits the phrase ‘affirmative vote’:

            The Fund may act under section X(a) by either (i) a vote of the Trustees in which a majority of the Trustees vote in favour of the action, or (ii) a vote of the shareholders in which a majority of the outstanding shares vote in favour of the action.

            …unless the Executive receives a copy of a resolution (i) duly adopted by the Board and (ii) for which a majority of the entire membership of the Board voted in favour…

  2. May I poke my head above the distant easterly horizon? Whenever I hear the word “affirmative”, I think of US military types using the word as an institutional code for “yes” (in films, 1960s comics, etc), just as sailors might say “aye”. So my starting assumption is that the word in the above contexts means something like “in favour”. And is probably redundant in most or all of those examples.

    Vance’s suggestion alarms me, as I would never have guessed that meaning from the word itself.

    • Sorry to have alarmed you, Mark. How does English corporate law approach majority-of-present vs. majority-of-outstanding votes? Or, to be more precise, majority requirements for quorum vs. majority requirements for carrying a vote?

      And did K-9 learn the word “affirmative” from watching American military movies?

      • On your more interesting question, yes I suspect you are right about K-9.

        On quorum at shareholder meetings, often 2 people: http://www.legislation.gov.uk/ukpga/2006/46/section/318

        On voting rights, once the meeting is quorate, voting is majority of shareholders present in person or by proxy, unless it is a written resolution or some category of resolution that requires more than more than 50%, eg see section 34 onwards of the model articles for public companies attached to the Companies Act 2006 (I won’t put link in case that puts this comment into quarantine for having more than one link).

        So the distinction doesn’t seem to be one that gets much attention, at least in my limited experience.

  3. While I agree with Affirmatively, I do not think an “affirmative vote” is redundant. If its a vote AGAINST something, its not an affirmation, no?

      • You’re right when ‘vote’ means the vote of one voter who can vote yes or no. In that case, ‘affirmative vote’ is not redundant.

        But when ‘vote’ means the balloting process of a body, and the context is that an action was ‘approved by a vote of’ the body, ‘affirmative vote’ woud be redundant because if the measure was ‘adopted’ or ‘approved’ by a vote of the body, the vote *must* have been ‘affirmative’. No measure is adopted by a ‘negative vote’ *of the body*.


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