I noted with interest Neal Goldfarb’s recent post on LAWnLinguistics about an amicus brief that he filed with the U.S. Supreme Court. His brief concerns the word because, and here’s the gist of the issue addressed:

In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the law as a “but for” cause of the adverse action? Or is it enough for the plaintiff to prove that the prohibited factor was one of several motivations for the action, any one of which would have been sufficient on its own?

Of course, the word because occurs in contracts. Here are three examples picked from merger agreements recently filed on EDGAR:

Should any provision of this Agreement be or become ineffective because of changes in Applicable Laws or interpretations thereof, or should this Agreement fail to include a provision that is required as a matter of law, the validity of the other provisions of this Agreement shall not be affected thereby.

… provided, however, that the Indemnitor shall not have the right to assume the defense of any Litigation if (i) the Indemnitee shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnitor, and, in the reasonable opinion of the Indemnitee, counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such interests could be in conflict with those of the Indemnitor, (ii) …

Rejection or other refusal to accept or the inability to deliver because of a changed address of which no notice was given will be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.

Conceivably, the meaning of because could become an issue in a contract dispute, but I don’t know whether any such dispute has made it into a court opinion or has otherwise featured in a contract dispute. If it has, I’d be pleased to hear about it.

By the way, I love the title of Neal’s post.

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.

1 thought on ““Because””

  1. In some cases the second interpretation (that the word only requires the plaintiff to prove that the factor was one of several motivations, and that it would have been enough on its own) may not get the plaintiff much further in practice. Even if the defendant is found in breach, when damages come to be assessed they will generally be assessed on the “but for” basis (here in England, in any case), and so the “but-for” test still needs to be satisfied anyway.

    Of course it depends on the circumstances, the nature of the breach and the applicable law, so in some cases the distinction will still be important.


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