Behold the following, all culled from EDGAR and all featuring and/or used between alternative defined terms:

… and EdgeWave, Inc., a Delaware corporation (“Employer” and/or “Company”) …

THIS DEED OF TRUST, ASSIGNMENT OF RENTS, ASSIGNMENT OF LEASES, SECURITY AGREEMENT AND FIXTURE FILING (this “Deed of Trust” and/or “Trust Deed”) …

… Michael J. Friedman (hereinafter the “Executive” and/or “Employee”) …

Now, we know that and/or is has got problems (see this 2017 post). And we know that providing alternative defined terms for something is a bad idea (see this 2007 post). But combining the two, well that’s …

On Twitter, some suggested that this practice is a hedge against copy-and-paste problems. That by itself would be unimpressive—what’s so hard about Ctrl + H? But it goes beyond that, in that it seems that the drafter is signalling that they don’t know whether one or the other defined term, or both, are used in the contract.

But it’s actually a little more subtle than that. Usually alternative defined terms are linked with or. It wouldn’t make sense to interpret that as meaning that the contract uses only one or the other defined term. Instead, the drafter is in effect saying that a given instance of use of a defined term for that definition might be one or the other defined term. Applying that logic consistently, use of and/or to link defined terms would suggest that a given instance might consist of … both defined terms?

This is what I get for doing a blog post late on Friday afternoon. Bring on the weekend!

In this 2016 post I wrote about circular definitions. Now, thanks to @saBEERmetrics, we have another example:

Ok, this is definitely one to write about. Using circular logic in definitions. X means everything except Y. Y means anything that's not X pic.twitter.com/Tc1PzNU1KF

— saBEERmetrics (@saBEERmetrics) July 3, 2017

Here are the relevant definitions:

all Governmental Approvals that CUSTOMER is required by Law to obtain, maintain, or provide, other than Supplier Governmental Approvals (collectively, “CUSTOMER Governmental Approvals”)

all Governmental Approvals that Supplier is required by Law to obtain, maintain, or provide, other than CUSTOMER Governmental Approvals (collectively, “Supplier Governmental Approvals”)

Yes, they’re circular: as a matter of logic, to understand one, you must refer to the other, which points you back to the first one, which points you back to the second one, ad infinitum.

In this case, you can interrupt the circularity by bringing to bear what you already know, which is that absent some sort of affiliation between Customer and Supplier, there should be no overlap between approvals Customer needs and approvals Supplier needs.

Here’s an analogous pair of definitions:

“Dead” means everything that is dead except that which is Alive.

“Alive” means everything that is alive except that which is Dead.

Because we know that being dead and being alive are mutually incompatible, this pair of definitions is more pointless than mystifying.

In both pairs of definitions, the simplest fix is to eliminate the exception from each. That serves to eliminate the need for the defined terms Dead and Alive. With a bit of creativity, you might be able to do without the defined terms CUSTOMER Governmental Approvals and Supplier Governmental Approvals.

(By the way, note how Customer is annoyingly stated in all capitals all the time, but not Supplier. The contract in question is obviously the work of a master. Not.)

I’ve said any number of times (most recently in this 2016 post) that creating the defined term this Agreement is pointless. Actually, let’s just call it dumb.

My thanks to @neil_neilzone for making that clear this morning with the following tweet:

*head explodes* pic.twitter.com/5IRrazUyNf

— Neil Brown (@neil_neilzone) June 2, 2017

When you create the defined term this Agreement by means of an integrated definition in the introductory clause, the redundancy isn’t as starkly apparent as it in Neil’s example.

An autonomous definition might refer to the part of speech of the defined term. If it does, invariably it’s because one or more related forms of that defined term are used in that contract and are treated as defined terms too. Here are four examples:

“Transfer” means, when used as a noun, any voluntary or involuntary, direct or indirect (whether through a change of control of the Transferor or any Person that controls the Transferor, the issuance or transfer of Equity Securities of the Transferor, by operation of law or otherwise), transfer, sale, pledge or hypothecation or other disposition and, when used as a verb, voluntarily or involuntarily, directly or indirectly (whether through a change of control of the Transferor or any Person that controls the Transferor, the issuance or transfer of Equity Securities of the Transferor or any Person that controls the Transferor, by operation of law or otherwise), to transfer, sell, pledge or hypothecate or otherwise dispose of. The terms “Transferee”, “Transferor”, “Transferred”, and other forms of the word “Transfer” shall have the correlative meanings.

“Control” used as a verb means, when used with respect to an entity, the ability … ; and “Control” used as a noun means an interest that gives the holder the ability to exercise any of the foregoing powers.

“Guarantee” means, as to any Person , without duplication, (a) any obligation, contingent or otherwise, of such Person … . The term “Guarantee” as a verb has a corresponding meaning.

“Commercialization” means any and all activities directed to … . When used as a verb, “Commercialize” and “Commercializing” mean to engage in Commercialization and “Commercialized” has a corresponding meaning.

This approach seems heavy-handed. Regarding the first example, it results in a contract full of defined-term variants of Transfer.

A different approach uses refers to if the part of speech of the defined term doesn’t match that of the definition. That’s the case when you have more than one defined term:

“Register”, “Registered”, and “Registration” refer to a registration effected by preparing and filing a registration statement under the 1933 Act … .

This approach is more economical, but you might still end up with more defined terms than is desirable.

Yet another option would be to have an internal principle of interpretation do the work:

If a term is defined as one part of speech (such as a noun), it will have a corresponding meaning when used as another part of speech (such as a verb).

But if an undefined related form of a word used as a defined term occurs in the same contract, this principle of interpretation could have unexpected consequences. I’d feel more comfortable stating explicitly what the defined terms are.

You might be able to avoid all such contortions. The point of the defined term Transfer, for example, is to make it clear that you can have different kinds of transfer. Perhaps that be accomplished by saying, in the main provision dealing with transfer, whether voluntarily or involuntarily, etc., and then having other references piggy-back off of that.