An Example of an Awkward Definition

A little birdy suggested that I should check out the definition of “Arbitrator” in section 12(a) of the agreement providing for Jeff Bezos’s acquisition of the Washington Post. (For more about that contract, see this post.)

Here’s the sentence in question:

If the Purchase Agreement is not executed within 60 days of the date hereof, the Seller and the Purchaser shall within 75 days of the date hereof submit to the first listed individual designated in Schedule 12(a) hereto (the “Arbitrator” (if such Arbitrator is unable to serve, the Arbitrator shall be one of the other individuals set forth on Schedule 12(a) hereto, designated in an order of precedence corresponding to the order in which the individuals are listed on Schedule 12(a) should the first listed individual be unable to serve)) this Letter Agreement, the most recent drafts of the Transaction Documents reflecting the status of the parties’ negotiations and a list of open issues and the written position of each party with respect to each open issue.

First you have a simple integrated definition that precedes the defined-term parenthetical. But the defined-term parenthetical itself contains another lengthy parenthetical that says that things are not as described in the integrated definition. So the definition is doubly awkward. First, it’s confusing to give the reader the definition in two parts. And second, the vehicle used for the second part—a parenthetical within a parenthetical—is particularly unwieldy.

So here’s my version (including some ancillary tidying up):

If by 60 days after the date of this agreement the Purchase Agreement is not signed by both parties, no later than 75 days after the date of this agreement the Seller and the Purchaser shall jointly submit to the first of those individuals listed in schedule 12(a) who accepts to serve as arbitrator, with those individuals being approached serially in the order listed (that individual, the “Arbitrator“), this agreement, the most recent drafts of the Transaction Documents reflecting the status of the parties’ negotiations, and a list of open issues and the written position of each party with respect to each open issue.

Although concision isn’t the primary goal, it’s a nice secondary benefit of clarity. My version weighs in at 104 words, compared to the 127 words of the original version, even though I added some words. (I added “jointly,” to make it clear that the idea is that the Seller and the Purchaser should act together rather than separately. I used “of this agreement,” to avoid the staleness afforded by “hereof”. And I added “that individual” to the defined-term parenthetical, to clarify the scope of the definition.)

By the way, why am I writing about this? Just because someone pointed the definition out to me. Otherwise, it’s the sort of thing one sees in countless contracts.

[Updated August 13, 2013: A reader sensibly asked whether it might be simpler to use an autonomous definition to define “Arbitrator.” Here how that would look [inspired by Uninterested Observer’s comment, I switched from the passive to the active voice in the opening conditional clause]:

If by 60 days after the date of this agreement both parties have not signed the Purchase Agreement, no later than 75 days after the date of this agreement the Seller and the Purchaser shall jointly submit to the Arbitrator this agreement, the most recent drafts of the Transaction Documents reflecting the status of the parties’ negotiations, and a list of open issues and the written position of each party with respect to each open issue. As used in this agreement, “Arbitrator” means the first of those individuals listed in schedule 12(a) who accepts to serve as arbitrator, with those individuals being approached serially in the order listed.

This version gets my vote. And at 108 words, it’s significantly more concise than the original. My thanks to the reader who suggested this approach.]

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.