My thanks—I think!—go to Heidi Anderson of ContractsProf Blog for helping, with this post, to spread the news of litigation over bison-themed sculptures commissioned by Kevin Costner.
Of course, a contract is involved; go here for a PDF copy. (That’s the first time I’ve linked to celebrity website TMZ.) What caught my eye was use of the word agreeably in the contract language at issue (emphasis added):
Although I do not anticipate that this will ever arise, if the Dunbar is not built within ten (10) years or the sculptures are not agreeably displayed elsewhere, I will give you 50% of the profits from the sale of the one and one-quarter life scale sculptures after I have recouped all my costs in the creation of the sculptures and any such sale.
The sculptor sued to enforce this provision; Costner claimed that the sculptor had agreed that Costner could install the sculptures at his South Dakota tourist site, Tatanka. A South Dakota court sided with Costner.
So what’s the deal with “agreeably”? To figure that out, let’s start by considering agreeable.
In everyday English, the adjective agreeable appears to have the following meanings:
- pleasing; pleasant (as in “He’s an agreeable companion”)
- ready or willing to agree; amenable (as in, “I’m agreeable to your plan”)
- to one’s liking (as in, “Your plan is agreeable to me”)
How does agreeable feature in contracts? To get a sense of that, as usual I turned to the SEC’s EDGAR system. The word agreeable occurrs in 1,898 contracts filed in the past year, which makes it a relatively commonplace usage.
Of course, it isn’t used to convey meaning 1, which isn’t suited to contracts. Instead, here’s an example of agreeable used to convey meaning 2:
WHEREAS Agent and Lenders are agreeable to such requests, subject to the terms and subject to the conditions contained herein; and
But consider the context. This recital is from an amendment to a loan agreement; the previous recital states that the borrowers want the Agent and Lenders to waive specified noncompliance. For purposes of saying that the Agent and Lenders are willing to waive that noncompliance, it would be clearer and more standard to use wish to. It seems odd to have the recitals foreshadow, by using agreeable, the agreement reflected in the lead-in that follows the recitals (The parties therefore agree as follows).
And here are some examples of agreeable used to convey meaning 3, with my alternative wording noted in brackets:
at the office of the Company or such other location as shall be mutually agreeable to the Purchaser and the Transferor [read that the Purchaser and the Transferor agree to in writing]
on terms agreeable to Licensee [read that the Licensee agrees to in writing]
in a manner and at such times as are mutually agreeable to the Director and the applicable Chairperson [read as the Director and the applicable Chairperson agree to in writing]
Meaning 3 conveys loose approbation. It doesn’t serve to convey the meaning called for in the above extracts, namely legally binding agreement, so instead I’d refer to agreement in writing.
To summarize, punctilious prose stylists would steer clear of meanings 2 and 3 of agreeable; contract drafters should run a mile from them.
What about the adverb agreeably? In everyday English, it’s used to mean “pleasantly”. For example, a recent article in the New York Times used it as follows: “In a manner that agreeably juggles deadpan self-deprecation, brash caricature, wry observation and emotional candor …”
Whoever drafted Costner’s contract presumably had in mind that agreeably would be the adverbial form of meaning 3 of agreeable. It’s perhaps easier to see that if you put the sentence at issue in the active voice: “if … we do not agreeably display the sculptures elsewhere ….”
But if meaning 3 of agreeable is unhelpful, agreeably is a drastically suboptimal way to express the intended meaning: “if … we do not agree to display the sculptures elsewhere ….”
The word agreeably occurs in only one contract filed on EDGAR in the past year. Unsurprisingly, that one use is incoherent: “[T]he Mortgagee … may convey the [Mortgaged Property] to the purchaser in fee simple, agreeably to the statute in such case made ….”
If a usage is too dubious even to make much of an appearance on EDGAR, you know that it’s a stinker.
My only quibble with Heidi’s account of Costner’s contract dispute is that she says that agreeably is ambiguous. I don’t think that’s the case, as you can figure out the intended meaning easily enough. Instead, the problem was that the contract didn’t specify how the parties should manifest their agreement. So the source of uncertainty wasn’t ambiguity, but rather failure to be specific enough. (Chapter 6 of MSCD considers the different sources of uncertainty; this March 2008 blog post on AdamsDrafting represents a first draft of that chapter.)
Costner would have avoided the nuisance of this lawsuit if the contract had read as follows: “if … we do not agree in writing to display the sculptures elsewhere ….” Of course, to accomplish that, he would have had to lose agreeably.
3 thoughts on ““Agreeable” and “Agreeably””
Huh, that’s funny. When I initially read the contract provision, I read “agreeably” as the first definition of “pleasing or pleasant.” It gave me pause, but when I re-read the provision and noted the informality of the phrasing (the use of “I” and “Dunbar”), I thought, okay, that’s strange, but I guess Costner has to put the sculptures on display somewhere nice and he can’t stick them in a warehouse or put them behind the porta potties….
Guess, I missed the point of the provision entirely! ;-)
John: Your reading is a reasonable one; you’ll see that commenter Westmorlandia had the same reaction as you. I spotted that meaning, but didn’t focus on it because I was aware of the more outlandish meaning that had been attributed to agreeably in the dispute. Ken
That is a very strange clause – I hope no lawyer was involved. I too read “agreeably” to mean “pleasingly”, because I don’t think the adverb is often used in any other way. Only by considering that it is a legal document does any other meaning put itself forward, but the non-legal first phrase – “Although I do not anticipate that this will ever arise” – makes it read initially like a paragraph from a letter rather than a contract, adding to the deception.
On a separate note, I’m not a fan of using “anticipate” to mean “expect”. It is arguably wrong (depending on how much of a stickler you are), and certainly feels more fussy in style.