“Between or Among the Parties”

Today I noticed the following tweet by @ronfriedmann:

The quoted contract provision—and yes, it’s craptastic—caused me to don my full-face respirator and scurry to EDGAR, where I found lotsa contracts that use between or among the parties and variants. Here’s one:

This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.

Why did I bother? Because previously I’ve considered between and among only for purposes of the introductory clause. (MSCD 2.46–.48 explains why distinguishing between between and among in that context is one of the great red herrings. Instead, use just between, but if someone insists on among, don’t waste time debating the issue.)

I haven’t considered instances of between or among. So here goes:

Ground zero for fights over between versus among is wills. If a will says, “My estate is to be shared between my children and Sally,” there’s a good chance that sparks will fly as the children and Sally fight over whether use of between means that the children get half and Sally gets half. Traditionalists would say that it does, whereas among would result in the children (let’s assume there are two of them) and Sally each getting one-third.

Use of between or among in a contract is presumably intended to preclude any such arguments. Three comments:

First, it would require the most sterile form of literalmindedness to insist, for purposes of an “entire agreement” or other provision in a contract with three or more parties, that between the parties means the provision applies only to contracts between two of the parties.

Second, the provision I quoted is from a contract between only two parties, eliminating any possible between-versus-among debate. That sort of glitch is to be expected in a copy-and-paste world.

And third, here’s a simple way to avoid any between-versus-among nonsense in a contract with more than two parties: say between two or more parties. End of discussion.

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.