“At All Times”

As a general matter, don’t use at all times. If you refer to a given period, if you say someone has to do something, if you say that things were a certain way, usually it follows that whatever it is applies at all times, unless you specify otherwise.

Here are some unprettied-up examples from EDGAR:

at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to the terms hereof or the Closing, LXRT and US Lighting shall not do any of the following …

The Executive undertakes to comply with these share ownership requirements at all times during the term of this Contract.

… and such Indebtedness shall at all times be valued at the full stated principal amount thereof).

Each Debtor shall at all times maintain its books of account and records relating to the Collateral at its principal place of business …

The operations of US Lighting are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of …

The Trustee of the Lead Securitization shall at all times be the mortgagee of record with respect to the Mortgage Loan.

Each B Note and the right of the related Note B Holder to receive payments of interest, principal and other amounts with respect to such B Note shall at all times be junior, subject and subordinate to each A Note …

Do you think I was wrong to strike at all times from any of these examples?

For example, regarding the US Lighting example, a reader said the following in an email to me:

Could US Lighting make the argument that, even if the operations weren’t always operated in compliance with requirements, there were in fact periods of time in which US Lighting’s operations were conducted in compliance, so the statement of fact is accurate; the operations have in fact been operated in compliance with requirements….just not always.

That would be a deranged argument for US Lighting to make. If I have to take precautions against that argument, I’d have to take similar precautions elsewhere, and that’s how contract prose gets deformed. But we’re not in the realm of right and wrong. Instead, we’re making trade-offs.

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But you’ll note that in the opening paragraph I say “usually.” In a given context, at all times might help avoid confusion. Consider the following example:

… and the Parent shall take all actions necessary to ensure that the Payment Fund [always] includes at all times cash sufficient to satisfy the Parent’s obligation to pay the Merger Consideration under this Agreement.

If you were to remove at all times, perhaps one could argue that the account need contain the cash only when it’s time to pay the Merger Consideration. But even if at all times serves a useful function, how about using always instead? I added always to this example.

But as reader AWB pointed out to me, there are bigger problems with this sentence. Perhaps the conclusion to be drawn is that if at all times (or always) might serve a purpose in a given provision, take that as a sign that you should rewrite it.

(If you find this sort of stuff thrilling, check out this 2007 post on at any time and this 2008 post on from time to time.)

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.