“Control,” “Prevail,” “Take Precedence,” or “Govern”?

I received the following inquiry from reader Andrew Sinclair:

I couldn’t find any posts on the topic of whether to use “control”, “prevail”, or “govern” to resolve conflicting terms.  I had a partner in China ask to change to change “prevail” to “control” when negotiating a contract.  That suggested to me that the partner thought there would have been some legal difference, but I did not have an opportunity to ask.

I also noticed that between a US and European version of one of Amazon’s agreements (which are very similar to each other), the US version uses “controls” and the European version uses “prevails”.

Here’s another one, Google app terms in Ireland say “take precedence”, and the corresponding US terms say “control.”

In the above examples, the agreements are similar enough that the word change seems to intentional.  It’s not that they’re entirely different agreements; it’s clear that someone started with the the foreign version and edited it to align with her jurisdiction.  That raises the question: what is the significance of the word choice?

Here are the contrasting Amazon and Google provisions (emphasis added):

  • Amazon US: In the event of any conflict between this Operating Agreement and the Operational Documentation, the Associates Program Excluded Products page will control over this Operating Agreement, which will control over the remainder of the Operational Documentation.
  • Amazon Europe: In the event of any conflict between this Operating Agreement and the Operational Documentation, the Excluded Products page and the Trademark Guidelines will prevail over this Operating Agreement and this Operating Agreement will prevail over any of the other Operational Documentation.
  • Google US:  If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Page, the Agreement, and the terms located at any URL.
  • Google Ireland:  If there is a conflict between this Google Apps Enterprise Agreement and the terms located at any URL, this Google Apps Enterprise Agreement will take precedence.

It’s interesting that people seem to have strong views about what words to use in this context. I can’t get too worked up about it. Here are my thoughts on the above alternatives, plus another popular option, govern:

  • prevail. It might be overkill to extend the battle imagery suggested by conflict—I picture one bloodied but triumphant document standing over the recumbent form of the other. On the other hand, the meaning is clear.
  • govern. I think this is unhelpfully broad.
  • take precedence. The notion of precedence suggests that Able goes before Baker, but that Baker might well go too. But in this context, one document supersedes the other.
  • control. A stroll on the SEC’s EDGAR system suggests that this is the favorite. But this meaning of control isn’t idiomatic.

So prevail gets my vote, but I might change my mind. (When I first posted this, I opted for control, but prodded my Mark Anderson’s comment I quickly switched my vote.)

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.

5 thoughts on ““Control,” “Prevail,” “Take Precedence,” or “Govern”?”

  1. Europe calling…

    The word “control” looks very odd to me, as I don’t think of it meaning prevail or take precedence. (If A controls B, to my understanding it doesn’t mean that A’s actions/decisions are to be preferred to B’s, it means A causes B to do something.)

    My guess is that the European drafters who modified the US document thought the same thing. Is that an established meaning of control in non-legal US English, or is it just a term that has grown up in US legalese?

    A possible reason for avoiding “prevail” and “take precedence” is that they could be viewed as highfalutin words, but I can’t immediately think of another. Perhaps, “if A conflicts with B, A shall apply”?

    Auf wiedersehen!

    • You’ll note that reading your comment prompted me to revise my post. I have in mind a blogging equivalent of the “five-second rule” that applies when food falls on the floor: If you change your mind within one hour of posting something, you can revise it without making a to-do about it.

  2. One random observation here: “control over” seems a poor grammatical choice. “Control” is a transitive verb, so one must control something. If one simply says “I control” the implicit direct object is “everything” or “everyone.”

  3. The American mind is branded with the phrase “no controlling legal precedent” from the 2000 Bush-Gore presidential election.

    At dictionary.law.com, there’s no entry for “control,” but there is the following:

    “controlling law

    “n. the laws of the state which will be relied upon in interpreting or judging disputes involving a contract, trust or other documents. Quite often an agreement will state as one of its provisions that the controlling law will be that of a particular state.”

    This suggests that “control” may be — heavens! — a legal term of art or even — gasp — legalese when used this way. But no: Merriam-Webster to the rescue.

    intransitive verb

    1 : to prevail or have decisive influence : CONTROL “in all causes of passion admit reason to govern” — George Washington>

    I was going to put forward the possibility of “trump” and to heartily applaud Mark Anderson’s suggestion of “apply,” but gosh darn it, if “control” is good enough for George Washington, it’s good enough for me.


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.