An Instance of Inconsistency in Saying that Notices Must Be in Writing

I recently had a random Edgar encounter with the following set of internal rules of interpretation:

Welcome to the suck: the first, second, third, and fifth are hopeless. And dig that crazy period-and-parentheses enumeration combo.

But the fourth is what caught my eye. So the notices provision says that notices must be in writing to be effective, but elsewhere we’re going to sporadically say written notices or notices in writing, just to remind the other side that, yes, notices have to be in writing. Otherwise, a reader might consider a given provision in isolation and attempt to give notice by phone or in a face-to-face conversation.

I think that internal rule of interpretation is a bad idea, for two reasons.

First, saying in the deal terms that notices have to be in writing is redundant, given what the notices provision says. You should never say the same thing twice in a contract, and one reason for that is implicated here: it adds unnecessary words. I suggest that fear that the other side might try to give notice orally isn’t worth eliminating the in-writing requirement in the notices provision in favor of adding it to each deal-term reference to giving notice.

And second, if you add the in-writing requirement to just some of the deal-term references to giving notice, you’re being inconsistent. That’s too is something you should never do in a contract. It suggests that the writing requirement is more important for some kinds of notice than for others, so maybe the in-writing requirement isn’t really necessary for those other kinds of notice. If you send those sorts of mixed signals in a contract, don’t be surprised if a court opts for one scenario over the other.

So the fourth rule of interpretation joins the others on the scrapheap.

(By the way, A Manual of Style for Contract Drafting deals contains a short chapter on internal rules of interpretation. But it’s perhaps the least compelling chapter in the book. That’s because most internal rules of interpretation state the obvious, make no sense, or are unrealistic in trying to tell courts what to do.)

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.