“Certify”

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.

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.