The issues of word choice that I discuss in MSCD are ones that drafters are likely to encounter repeatedly. In your day-to-day drafting, you’ll probably come across many other, quirkier issues. Here’s one I encountered today.
I’m currently revising a software license agreement. It includes, in the section dealing with what’s meant to happen when the license terminates, the following sentence: At the Seller’s request, the Customer shall certify in writing to the Seller that the Customer has complied with these requirements.
This led me to ponder whether in this context certify is the best word. Black’s Law Dictionary gives as a definition of certify “To attest as being true or as meeting certain criteria.” That certain fits, but certify implies a level of formality that isn’t necessary in this context—etymology suggests that if you’re going to certify as to a fact, you’ll do so in a certificate, which Black’s defines as “A document in which a fact is formally attested.”
The Customer should be able to meet the obligation in question by sending a one-sentence letter stating that it has done whatever it needed to on termination of the license. Nothing would be gained—in terms of remedies or otherwise—by requiring the Customer to prepare a certificate, which would doubtless be cluttered with the legaldegook generally associated with such documents.
I thought of saying instead the Customer shall confirm to the Seller in writing that …, but instead I opted for the Customer shall notify the Seller that …. If I notify you that my name is Fred, I’m conveying that fact just as unequivocally, and just as actionably, as I would if I were to enshrine it in a certificate. And this formula has the benefit of tying into the agreement’s “Notices” provision, so generally I wouldn’t need to specify that the notice has to be in writing.
I’ve seen these type of post-agreement certification requirements in dozens (hundreds?) of contracts. In my 12 years of practice, I’ve never actually had anyone request one. So in most/all cases, I think the entire clause should be omitted. Eric.
Eric’s useful comment shows that when you’re redrafting a contract, it’s best to have available industry-specific expertise in addition to serious drafting chops.
In my many years as an engineer in pharmaceutical, chemical, and other industries, I have often “certified” that a procedure was followed, a device was successfully tested, a production process was acceptable for use, etc. The specific word “certify” was commonly used in the protocol, standard operating procedures, or qualification documents.
In almost all cases the certification was simply a matter of signing a one sentence statement, or signing and dating a statement on the SOP or protocol form. On some software checkouts I would make over a dozen “certifications”, many simply initials in blanks and an a signature on a form.
In no case was any special document cluttered with legaldegook (or engineeringdegook) required. I think that if the work “certify” can be used in routine SOPs, protocols, and other engineering procedures, it certainly can be used in contracts. It does not, at least to me and others in my field, imply any special formality.
Mary
Mary: That we’re having this exchange suggests to me that “certify” is vague in terms of the level of formality required. I suggest that the clearest option would be to reserve “certify” for when a measure of formality is required and to use a simpler word in other contexts.