Another Circular Definition

In this 2016 post I wrote about circular definitions. Now, thanks to @saBEERmetrics, we have another example:

Here are the relevant definitions:

all Governmental Approvals that CUSTOMER is required by Law to obtain, maintain, or provide, other than Supplier Governmental Approvals (collectively, “CUSTOMER Governmental Approvals”)

all Governmental Approvals that Supplier is required by Law to obtain, maintain, or provide, other than CUSTOMER Governmental Approvals (collectively, “Supplier Governmental Approvals”)

Yes, they’re circular: as a matter of logic, to understand one, you must refer to the other, which points you back to the first one, which points you back to the second one, ad infinitum.

In this case, you can interrupt the circularity by bringing to bear what you already know, which is that absent some sort of affiliation between Customer and Supplier, there should be no overlap between approvals Customer needs and approvals Supplier needs.

Here’s an analogous pair of definitions:

“Dead” means everything that is dead except that which is Alive.

“Alive” means everything that is alive except that which is Dead.

Because we know that being dead and being alive are mutually incompatible, this pair of definitions is more pointless than mystifying.

In both pairs of definitions, the simplest fix is to eliminate the exception from each. That serves to eliminate the need for the defined terms Dead and Alive. With a bit of creativity, you might be able to do without the defined terms CUSTOMER Governmental Approvals and Supplier Governmental Approvals.

(By the way, note how Customer is annoyingly stated in all capitals all the time, but not Supplier. The contract in question is obviously the work of a master. Not.)

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.

6 thoughts on “Another Circular Definition”

  1. I think all the examples have a problem different to circularity — they purport to ‘carve out’ something not in the original set.

    A clearer example might be ‘Latin letters’ means all the letters of the Latin alphabet except for the letters of the Greek alphabet, and ‘Greek letters’ means all the letters of the Greek alphabet except for the letters of the Latin alphabet.

    There’s no circularity; the problem is that the pseudo-exceptions are pure surplusage. The definitions would be complete and non-circular without them.

    The examples in the post can be recast to highlight their non-circular nature.

    ‘Customer Governmental Approvals’ means Governmental Approvals the Law requires the Customer to maintain, obtain, or provide. ‘Supplier Governmental Approvals’ means Governmental Approvals the Law requires the Supplier to maintain, obtain, or provide.

    I’m assuming the two sets of approvals don’t overlap. If they do, the carve-outs would create a no man’s land of approvals that fall under neither definition.

    That may be a problem, but the problem isn’t circularity. –Wright

    • This is a common problem in contracts that have mutual indemnities. The problem is best identified by finding a factual scenario and testing whether it is clear who is indemnifying whom.
      Consider the example of the supply of alcoholic confectionary in Ruritania. Under State Ordinance Number 314159 any supply of alcoholic confectionary to a market stall holder requires a government license, and any purchase of alcoholic confectionary by a person for the purpose of reselling it in a street market also requires a license (they use US spelling in Ruritania).
      In a contract of supply between the supplier and the stall holder, the supplier is required to indemnify the stall holder against liabilities arising from or related to breach of Supplier Government Approvals, and vice versa.
      The 15 year old daughter of the Minister of the Interior and her friends bunk off from school and hang around the market. They buy 5 kilos of cherry brandy chocolates from the stall holder, consume them, cause mayhem in the market (including damage to other stalls) and are then sick over the stock of the nearby The Aba Mussa Carpet Emporium.
      My sense is that the definitions do look circular and are not mutually exclusive. I agree that IF they are mutually exclusive then they are not circular.

      • Mark,

        On your fascinating fact pattern, the indemnity agreements are circular and effectively cancel each other out. But I think that’s because of the ‘arising from or relating to’ language.

        Off topic, the stall owners would have to satisfy the “cause in fact edited down to legal cause” standard, and they might prevail against the girls who did the harm but lose against the reseller and supplier because the girls’ free-will consumption of the boozy pastries broke the causal chain.

        If the stall owners nevertheless prevailed against the reseller, the reseller might not recover (off the contract) from the supplier for the similar reason that the reseller’s illegal sale to the girls was another break in the causal chain. –Wright

  2. Can we say ” The Customer and The Supplier shall obtain respective government approvals the obligations for which are cast upon each of them” ?


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