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 timesduring 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 timesduring the term of this Contract.
… and such Indebtedness shall
at all timesbe valued at the full stated principal amount thereof).
Each Debtor shall
at all timesmaintain 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 timesin compliance with applicable financial recordkeeping and reporting requirements of … The Trustee of the Lead Securitization shall at all timesbe 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 timesbe 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.
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 timescash 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.)
9 thoughts on ““At All Times””
Two kinds of situation come to mind:
1/ It’s clear that the drafter intends continuity: ‘The Tenant shall keep the store open … from 9:00 a.m. to 5:00 p.m., Monday through Friday’.
In such situations, inserting ‘at all times’ would be gilding the lily, as ‘keep’ makes continuity obvious.
2/ It’s not clear whether the drafter intends continuity: ‘The night watchman shall patrol … between sundown and sunup the next morning’. Once a night? Twice a night? Every hour on the hour? Never stop walking? The provision needs fixing.
If the drafter intends uninterrupted patrolling, I see no objection to inserting ‘at all times’ to signal that intent.
It’s not the only way to do the job (‘shall keep patrolling’), but it works.
I wouldn’t use at all times in that context.
I use it only if there’s something in the context that might suggest some other meaning — rare enough that I can’t come up with an example quickly. Same with “at any time.”
Examples or it didn’t happen!
Sorry. Life it short. You can take my word for it or not.
Well, I guess my attempt at levity fell flat, so I’ll permit myself to note that “take my word for it” is no way to advance any field of study.
My attempt at levity fell flat,too. I basically agree with you in general, while reserving the possibility that there may be some circumstances in which it is useful to foreclose another possible interpretation based on the context, but I fail at coming up with a good example on the spot. After all, your opening paragraph says, “. . . if you say that things were a certain way, usually it follows that whatever it is applies at all times, unless you specify otherwise.” Only usually? Why not at all times?
Regarding “usually,” see the stuff after the three asterisks.
Levity in blog comments, like levity in email, is to be handled carefully, with no subtlety or irony and a maximum of exclamation points, emoticons, and emoji!
Fair enough. I can’t think of any reason why “always” would not be a better choice than “at all times” when there’s a need to foreclose other interpretations. Uncle! (That’s an attempt at levity. As Mork would say, “Humor. Arr arr.”)