“Agrees With”

More often than you’d expect, I’m made to feel as if it was just yesterday that I started exploring contract language, not 20-plus years ago. Today’s example of that is agrees with. It’s basic verb structure, but one I’d never thought about until I was today years old.

Here are some examples:

Seller hereby covenants and agrees with Buyer that during the period from the date hereof to the Closing or the earlier termination of this Agreement in accordance with Section 7.1 (the “Interim Period”), except as otherwise contemplated by this Agreement (including as contemplated by the Reorganization and including the transactions contemplated by the Merger Agreement ) or agreed by Buyer, each Ameri Company shall conduct its business in the Ordinary Course of Business …

The Company represents and warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each Settlement Date, (4) each Triggering Event Date (as defined below) and (5) as of each Time of Sale …

… each of the Guarantors hereby agrees with the Administrative Agent , the Lenders, the Hedge Banks and the Cash Management Banks as follows: …

It’s basic, but it isn’t complicated. A agrees with B that means the same thing as A and B agree that. And both are examples of … throat clearing! As MSCD ¶ 3.27 says:

A throat-clearing verb structure can be mistaken for the principal verb structure of a sentence. … But throat-clearing verb structures are neutralized by the verb structure that follows, so all that throat-clearing accomplishes is to suggest a general assent to the rest of the sentence. That assent is redundant, because the essence of a contract is that the parties assent to everything in the body of the contract.

So in the first example above, the only verb structure we care about is each Ameri Company shall conduct.

The second example needs serious help, because it purports to make statements of fact on the date of the agreement and on subsequent dates. A statement of a future fact should always be structured as something else. Perhaps an obligation, perhaps a termination provision, perhaps something else—it depends on the circumstances.

And the third example is entirely redundant.


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.