Last week a reader asked me whether I knew of any cases discussing the distinction between saying “to the Seller’s knowledge” and saying “to the best of the Seller’s knowledge.”
It’s commonplace for drafters to use the phrase the best of when referring to someone’s knowledge. For example, in the past month 98 contracts filed on the SEC’s EDGAR database used to the best of the Company’s knowledge or to the best of its knowledge, the Company. By contrast, during that period 291 contracts used to the Company’s knowledge or to its knowledge, the Company.
But I recommend that in phrasing a knowledge qualification you not refer to the best of someone’s knowledge. It adds nothing, because to the best of Acme’s knowledge means exactly the same thing as to Acme’s knowledge.
In this context, as in the phrase best efforts, the word best constitutes rhetorical emphasis. In general conversation, my adding the best of when attesting to my knowledge of a given matter perhaps represents my way of according my assertion an extra measure of importance. This sort of rhetorical emphasis has no place in the limited and stylized prose of contracts.
Furthermore, adding the best of exacts a cost. For one thing, it adds three useless words, and unless you prune useless words whenever you see them, they soon add up. But more perniciously, using the best of could lead a reader—perhaps a judge!—to assume incorrectly that it implies some sort of heightened level of knowledge, perhaps involving a duty to investigate.
I haven’t found any case law pointing to such confusion, but the reader inquiry that prompted this post indicates that the potential for confusion is real.
2 thoughts on ““To the Best of Its Knowledge””
It has always seemed to me that this phrase “to the best of XXXX knowledge” is actually intended to imply an affirmative duty to investigation and thereby assure that the warranties and reps are true. But, as you point out, this is probably a very poor way to go about that objective. Nonetheless, when presented an already drafted contract with the “best of” in it, striking that phrase tends to raise a flag. Additionally, warranty and rep language (the context I’m think of at the moment) is generally written such that the prefacing statement has identical language for both parties. So, when the trust level is on the lower end of the acceptable scale and my client is confident of the warranty and reps provided, I’ve try to use something like the phrase: “XXXXX has made reasonable inquiry and secured the necessary knowledge to assure the following warranties and representation are true and accurate.” Offering the above as mutual language in lieu of “to the best of” usually works. The discussion gets more interesting when it doesn’t.
Craig: I wouldn’t use the introductory language you suggest: as a general matter, most representations aren’t qualified by knowledge, and with respect to those representations the representing party’s knowledge is irrelevant. If you want to put some teeth into the concept of knowledge, I’d accomplish that through the definition of “Knowledge.” I’ll probably blog about that at some point.
By the way, you might want to say “accurate” instead of “true and accurate.”