“Amongst” and “Whilst”

It’s easy enough to find contracts that use amongst. A search on Westlaw’s version of EDGAR that was limited to items filed in the past three years yielded 4,774 hits. Here are four examples, with those apparently drafted in Commonwealth countries noted with an asterisk:

… then the Maximum Indemnification Amount or the balance thereof shall be divided amongst the Office Holders at the Company …

… then such excess Pro Rata Company Optional Redemption Amount shall be allocated amongst the remaining holders of Notes in accordance with the foregoing formula.

Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.*

“Marlin Intercreditor Agreement” means the intercreditor agreement dated 25 July 2013, between, amongst others, Marlin Financial Intermediate II Limited as parent …*

Garner’s Modern American Usage says that in American English, amongst is an archaism and is “pretentious at best,” but that it’s “more common and more tolerable in [British English], where it doesn’t suggest affectation.”

But the following Google Ngram of use of among and amongst in two hundred years’s worth of digitized British English books shows that in England among has consistently been more popular than amongst.

So here’s what I recommend:

If you draft in the U.S. manner and use amongst, stop it, you popinjay!

If you draft in the English manner, drop amongst. It’s best that you pick one usage from among the alternatives and stick with it. Given that in England among has long been used more frequently than amongst, even for English drafters it makes sense to use only among. An added benefit is that you would avoid looking like a preening ninny to U.S. readers.

(Regarding use of amongst in the fourth example above, see today’s other post, here.)

Exactly the same analysis applies to use of whilst. I recommend that everyone drop it in favor of while. If that’s unappealing, you might consider going all-in and using betwixt instead of between.

 

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.