In my post on “termination for convenience” (click here) I said that in language providing for termination for any reason you can dispense with the phrase at any time, as that concept is implicit in termination for any reason.
But the point can be made more broadly—the phrase at any time would seem to be extraneous whatever the context.
In general English usage, if someone has discretion to do something, that person may exercise that discretion whenever he or she wishes, absent any indication to the contrary. There’s no reason why the same principle shouldn’t apply in contracts, and as a result at any time should be redundant in language of discretion:
The Committee may
at any timebuy from a Participant an Option previously granted with payment in cash, shares of Common Stock of the Company (including restricted stock) or other consideration, based on such terms and conditions as the Committee and the Participant may agree.
What about other contexts in which the phrase occurs?
Sometimes it’s used as part of a phrase that’s equivalent to during the term of this agreement and is just as superfluous, as in the following provision:
It shall be a Ratings Event
if at any time after the date hereof(A) so long as S&P is currently rating the Certificates …
(Note that a better fix for the preceding provision would be to rewrite it entirely.)
Sometimes at any time is part of a formulation that could be replaced with if:
At any time at which [read If] no Relevant Entity has credit ratings from Fitch at least equal to …
And in references to a specific period of time, at any time can simply be stricken:
If
at any timeafter the Closing the parties agree that any further deeds, assignments, or assurances are necessary or desirable …
If you can think of a circumstance where you can’t do without at any time, please let me know.
What do you think about this:
. . .Tenant will immediately notify Landlord in writing of any existing, pending, or threatened Release or investigation or inquiry by any Governmental Authority of a violation of Environmental Law by Tenant or the Premises. Landlord may enter upon the Premises at any time and take samples for testing to verify compliance with this Section. . .
Without “at any time”, could the second sentence be misread to mean “only after Tenant notifies Landlord of a violation of environmental law”?
Paul: I agree that the second sentence could cause confusion. But at any time does nothing to address that confusion, as it could be read to mean “at any time after Tenant notifies Landlord ….” Some other fix would be required, such as putting the second sentence first. Ken
What about “at any time” being used to distinguish against something that could only be done during normal business hours, for example? The L-T example above made me think that you could have a situation like:
L may perform normal repairs during normal business hours on 1 day’s notice to T. Notwithstanding the foregoing, L may enter the premises at any time [without notice] to perform emergency repairs.
10803: To make the meaning perfectly clear, I’d say “at any time of the day.” Ken
I’ll take a run at it. What about using “at any time” in a contract to clarify that a right may be exercised more than once (i.e. the party’s discretion is not exhausted if exercised)?
In Canada v. Agazarian, 2004 FCA 32, a Canadian tax case, the court used “at any time” to find support for the Minister’s right to reassess.
The court quoted, at paragraph 32, the definition of the phrase given in Stroud’s Judicial Dictionary (5th Ed.) (London, Sweet and Maxwell Limited, 1986):
“(1) A power to do a thing e.g. to revoke uses “at any time” is not confined to one execution; the words are equivalent to “from time to time, as often as the donee of the power shall think good” (Digges Case 1 Rep. 173)…”
http://decisions.fca-caf.gc.ca/en/2004/2004fca32/2004fca32.html
Troy: Good point, but if you want to make it clear that you can do something more than once, you should be explicit about it. I was pondering this issue recently before I got distracted; I’ll return to it shortly. Ken