With your indulgence, I’d like to talk grammar.
At the heart of A Manual of Style for Contract Drafting is what’s discussed in chapter 3—the different categories of contract language and the verb use that’s appropriate to each.
One such category is “language of performance,” which serves to memorialize actions of the parties that are contemporaneous with the signing of the contract. An example of language of performance is MSCD example [1-1]—Acme hereby grants the License to Smith. My first book, Legal Usage in Drafting Corporate Agreements, delves into grammar in greater detail than does MSCD, and in LUDCA I describe this kind of language of performance as a “ritual performative.” (You can find out more about LUDCA at the bottom of the MSCD page of this site.)
I’ve always been uneasy about one aspect of MSCD’s treatment of language of performance.
Here’s what I say in MSCD 3.13: “It is occasionally helpful to state that one or more parties are not taking a certain action, as in [1-3].” Here’s example [1-3]—The Buyer does not hereby assume the Excluded Liabilities.
I’ve always been half-hearted about the verb use reflected in [1-3]. While I was writing LUDCA I consulted a linguist from University College London. He categorically recommended the usage reflected in [1-3], so that’s what I went with, in both LUDCA and MSCD. But I’ve long thought that the more natural way to convey the same meaning would be to say The Buyer is not hereby assuming the Excluded Liabilities.
I’d now like to revisit this issue, and I invite anyone to post a comment suggesting which usage is preferable—[1-3] or my alternative—and why.
For a while now I’ve been working with Professor Alan S. Kaye of California State University, Fullerton (this fall our law review article will be unleashed on an unsuspecting world). Alan has suggested that he’ll alert the linguistics community to this gripping issue.
12 thoughts on “Calling All Linguists—A Question Regarding Verb Use”
I am neither a lawyer nor at all familiar with contract English; I’m commenting, as a linguist, on the usual difference (in everyday English) between the present simple (‘does not assume’) and present progressive (‘is not assuming’).
The present simple is used to refer to ‘general time’ – actions and situations that happen repeatedly, all the time, or at any time. As such, it is used to talk about permanent situations. In contrast, the present progressive is used to refer to actions and situations that are already going on at the moment of speaking. It is therefore used to talk about temporary situations or actions.
So, which is preferable depends on which more closely matches the meaning intended in the contract. I don’t know this, but I do wonder whether using the progressive form could be dangerous in implying only a temporary assumption by the buyer of the excluded liabilities? If the language needs to express a permanent assumption, then I would stick with the present simple.
Thank you for your comment, Sarah. Let me elaborate a little on what has been bothering me.
A sentence such as “Acme hereby grants the License to Smith” constitutes a performative that describes a ritual act, and it’s accepted as the outward sign that that act is taking place.
But what if the act in question isn’t taking place? I suspect that nonoccurrence of an act isn’t a suitable basis for a performative. That’s why I want to use the present progressive (“is not hereby assuming”). Retaining the “hereby” serves to limit the context to entry into the agreement.
I agree with Sarah’s conclusion that the simple present is better than the progressive form of the verb (although I truly hope that it was time zones and not insomnia that resulted in a time of 3:28 am for her posting!)
I think consistency dictates that if you are going to say “Acme hereby grants a license to Smith” you should also say “Acme does not hereby assume liabilities for…”. If you change your verb form to “Acme is not hereby assuming liabilities for…” you leave yourself open to a possible interpretation that you intended to convey a temporal difference in those two acts (or act and non-act, if you will). Secondly, to my ear at least the “is not assuming” form of the verb conveys a continuous action, which makes me think that the “not assuming” activity is ongoing, without end. I think “does not assume” works better to convey an activity that is accomplished (i.e completed)in the contract, ie the “not assuming” is effected and not just in process day after day. (I know that statutes are regarded as continuously speaking and maybe contracts are too, but that would mean that you don’t need to convey any continuity of effect in your verb form.)
This whole debate is made more complex by the use of that pesky “hereby”, which limits the action in the verb to “in this contract”. “Hereby” goes part of the way to undoing the impression of ongoing action (or inaction) that “is not assuming” conveys, so that may be why it is tempting to use it. However, I think you have to test the two verb forms in the sentences, without “hereby”, to determine which one works grammatically in the contract.
I am a lawyer with a Ph.D. in linguistics. One of the problems is that performative verbs, going back to John Austin’s How to Do Things With Words (1962) have an uneasy relationship with negation. Austin said that (many) have no truth value. Consider “I hereby pronounce you husband and wife.” One can object that the speaker doesn’t have the authority to do that or that the conditions aren’t met, yet it’s hard to ever say the sentence is false. One can’t very easily say either “I don’t hereby pronounce you husband and wife” or “I hereby don’t pronounce you husband and wife.”
Assuming responsibility is akin to this. The very act of saying that you assume responsibility creates a performance. It might be clearer to obviate the problem in another manner. A minister might say “In the rehearsal, nothing I say creates any obligation of marriage.” In the instance at hand, it might be clearer to say “In executing this agreement, buyer doesn’t assume any responsibilities for X.”
When I got in my car tonight, I realized that I had left something important out. There is yet another problem with negatives. Negatives can move in English. When we say “I don’t think she’s home” we normally mean “I think she’s not home.” Assuming is a performative in contracts. One can assume liabilities and so forth. What would it mean to assume no liabilities? That’s clearly not a performative in the sense that saying it doesn’t instantiatiate an assumption of no liabilities. That hardly something a contracting party can do with words. The other party could release her of liability, but she can’t affirmatively assume no liabilities. She can deny that she has liabilities. But she can’t simply say something and thereby make those liabilities go away.
I am a linguist with a J.D. degree. At first glance, I wonder if it would not be better to stay with the present tense but use a negative verb like decline or exclude. Ex: The Buyer hereby declines to assume/accept the Excluded Liabilities. OR The Buyer hereby declines to accept responsibility for … .
I will think about this some more. Also, I teach a course in the Rhetoric of Legal Discourse, and we may work on this issue in the fall.
I am a linguist with a Ph.D. degree. I think that Dumas’ comment touches the core of the “problem”. If you want to use explicit performatives as ritualized linguistic encoding, then the following conditions are necessary: “first person indicative active sentences in the simple present with one of a delimited set of performative verbs as the main verb, which will collocate with the adverb ‘hereby'” (Levinson 1983: 232). This, of course, refers to a subgroup of action verbs.
On the other hand, as Carston (2002) explains, negation can either be a predicate denial (e.g. ‘not happy’) or an affirmative predication of a negative term (‘unhappy’). Predicate denials are denials of the applicability of a given term (e.g. ‘happy’) to the subject term, whereas affirmative predication of a negative term is a case of term negation. Getting back to performative utterances, it seems then more plausible to use negative terms, as Dumas suggested.
The following citation might also be helpful: “explicit performatives are really just relatively specialized ways of being unambiguous or specific about what act you are performing in speaking. Instead, you can employ cruder devices, less explicit and specific, like mood […], or adverbs […], or particles […]. Or you can rely on intonation […]”, Levinson 1983: 233.
Carston, R. (2002) Thoughts and utterances: The pragmatics of explicit communication. Oxford: Blackwell.
Levinson, S.C. (1983) Pragmatics. Cambridge: CUP.
For a relevance-theoretic account of progressive aspect, you may refer to UCL Working Papers in Linguistics (1 & 2):
– Relevance theory and the meaning of the English progressive (1)
– Pragmatics and verbal aspect (2)
I am a linguist with experience in pragmatics and grammatical semantics, particularly with respect to historical pragmatics and the study of aspect. I find myself agreeing with Sarah Carr, in that the aspectual conditions which distinguish the simple present from the present progressive (negative or positive) convey additional nuances with respect to the truth conditions associated with them – the use of the progressive implies contingency, with the possibility that the temporary conditions or state will not hold after reference time (even counterfactuality with regard to the future). The more permanent, time-stable senses associated with the simple present suggest that the state persists ‘omnitemporally’. Thus the use of the auxiliary ‘do’ in positive, as well as negative, legal contexts, together with the adverb ‘hereby’ has persisted in legalese performatives since Early Modern English times, as noted in Tieken-Boon van Ostade (1987: 67):
” that I do hereby enter my Caveat against … ” (Spectator 1711: 47).
The reason I offer in my (2006 – in press) study of its history is that ‘do’ originated as a causative verb in Old English, and the meanings of causativity are retained in the execution of a performative act which is in the utterance of it. So it is still a powerful word-weapon in contracts or agreements, as evidenced in today’s usage also (personal observation):
“X do pay Y the sum of £X,XXX,XXX ….”
“X do permit Y to utilize Z …. ”
I have not come across any use of the progressive in similar contexts so far; however, it may be only that it is considered to be stylistically less formal, or that its distribution generalised at a late stage in the history of English. In the present case of a negative performative, I would be inclined to substitute a positive performative using a lexical item of negative meaning, as suggested by Bethany Dumas and Josh Ard.
Tieken-Boon van Ostade, Ingrid. 1987. The Auxiliary DO in Eighteenth-Century English. A Sociohistorical-Linguistic Approach. Dordrecht: Foris.
Ziegeler, Debra. 2006 (to appear). Interfaces with English Aspect. Diachronic and Empirical Studies. In press for John Benjamins.
Although it’s tangential to my original question, I’ll just note that while Debra Ziegler suggests that the auxiliary “do” is useful in positive legal contexts, I’ve always described it as an archaism. See Quirk et al., A Comprehensive Grammar of the English Language § 3.37 n.[e] (1985) (“In some legal documents in archaic style, the auxiliary DO construction is used merely as an alternative to the simple present or past tense ….”).
Although I don’t have nearly as many letters after my name as the authors of the previous posts, I will offer my personal opinion as a linguistics student. It is true that both the present simple (’does not assume’) and the present progressive (’is not assuming’) have their own specific semantics, as explained by Sarah Carr; however, I think (or ‘I am thinking’?) that the semantic content of a given utterance is a dynamic and fluid entity, if we may call it such. The reference, or meaning, of an utterance fluctuates and changes from speaker to speaker and cannot be carved out in stone and cemented as a static truth.
I have no formal knowledge of contract drafting either, yet I will offer the following thought. Suppose that the contract reads “the buyer does not assume the excluded liabilities”. In my opinion this version of the sentence does not represent a greater sense of permanency when compared to the present progressive version: “the buyer is not assuming the excluded liabilities”. If we interpret either sentence from the relative point of view of the reader of this contract during the period of its validity, either sentence will convey the meaning that “at the present time, (by which we are referring to the period of validity of the contract), the excluded liabilities are not assumed by the buyer.” In my opinion, anytime during the period of validity of the contract, either sentence will convey to the reader of the contract the meaning that “during the period of this contract, the buyer does not and is not assuming the excluded liabilities. I am not sure whether it is necessary to worry about the possibility of a temporary assumption by the buyer of the excluded liabilities if the present progressive “is not assuming” is used as long as it is specified in the contract that all and any verbs can only be interpreted as referring to “now”, which would in turn refer to the entire period of validity of the contract. Also,in response Mr. Adam’s mention that “the more natural way to convey the same meaning would be to say The Buyer is not hereby assuming the Excluded Liabilities”,it is unclear whether “natural” is an adjective which can be applied to language use. Who deems which version of the language is more natural? These are very interesting issues and in my opinion we are dealing with many grey lines in this case.
Just a thought! :)
I guess your desire to change the ‘tenseless’ Present Simple for the marked for ‘ongoing’ Present Progressive can be explained by the inner striving for harmony: After all, you say “Here’s what I say in MSCD 3.13: ‘It is occasionally helpful to state that one or more parties ARE NOT TAKING A CERTAIN ACTION, as in [1-3].'” The most consistent way to exemplify it would be to use the same aspect form in [1-3]—The Buyer is not hereby assuming the Excluded Liabilities.
When I ask my students why they choose to use one form over the other, they always say honestly: “It sounds better.”
Marina: You’re correct. The fact that I preferred the present progressive in setting up [1-3] was one of the reasons why I’ve ended up preferring the present progressive for [1-3] itself.
More generally, I too am a big believer in the “it sounds better” approach. But I treat that as my first step; I then go looking for a linguistics rationale as to why it sounds better. I’m still hopeful that such a rationale will materialize for this issue.