Behold the following sentence:
If as part of resolving a dispute a party is required to pay the other party, it must no more than 15 days after the dispute was resolved pay the other party the amount in question, plus interest from the beginning of the [day] [date] the disputed payment was originally due through the [day] [date] before the [day] [date] of payment.
It’s from a quick redraft I did of a contract section to show someone what their contracts might look like were I to redraft them. In each of the three highlighted instances, the original used date; I used day. This caused me to ponder day and date.
Here’s how I understand the difference. A day is a period of twenty-four hours as a unit of time, reckoned from one midnight to the next. You can refers to days generally, or to a specific day in the past or future.
By contrast, a date is a numbered day in a month, often given with a combination of the name of the day, the month, and the year. In other words, a date is the designation used for a given day; it’s not the day itself.
Drafters tend to prefer date over day, but often day works just as well, or better. Consider the following example from EDGAR:
Determination of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater.
What’s wrong with using day instead of day in both places?
But this line of thinking takes you to some scary places. For example, doesn’t closing day make more sense than closing date? Be very afraid. (In the past three years around 100 contracts have been filed on EDGAR that use closing day.)
On the other hand, when you refer to the date of this agreement, you’re not referring to the day itself but to the date designated as the date of reference for the contract.
I’m not suggesting that the distinction between day and date affects meaning or readability. But a guy’s got to decide.
17 thoughts on ““Day” and “Date””
A weird example of Date being abstracted from the real day will be:
“Signing Date means the date stated in the left-upper corner of the first page of this Agreement and not, for the avoidance of doubt, the day when the signatories have exchanged with each other the bilaterally executed hard copies of the Agreement, nor the day when the respective signatures have been affixed.”
I suspect drafters are often keen to pin down a particular date in the calendar, as opposed to any other period of 24 hours (in some contexts, a “day” could start at midday, or 1pm, or dawn, or dusk).
Similarly, letting agents often talk about “calendar months” to deal with the somewhat unlikely event that it could be mistaken for some other month – lunar months, or periods of 28 or 30 or 31 days, or whatever.
Can you clarify: does “through” in this context mean “up to and including”? Lawyers in England are often careful to state explicitly whether days at the beginning and the end of any period are included or excluded. The caselaw is somewhat equivocal.
I suggest that alternative meanings of day are unrelated to date.
And alternative meanings of month is a real issue, although I wouldn’t use calendar to address it.
I’m comfortable that through spares one the clutter of from and including and the like.
I agree completely that “day” should refer to a duration and “date” to a calendar entry. In the example you cited, a date can’t have a beginning or an ending. It’s a plot-point. To make matters more complicated, in your example, at the risk of being complimented as a pedant, I would say the first two instances should be “day” and the last one should be “date,” because for the last one you’re not talking about a time of day but only a calendar entry. “Closing Date” is correct because it’s a calendar point. “The date that is 30 days after the Closing Date” uses both senses.
Can’t you conceive of contexts where you’re referring to the day on which closing occurs, making Closing Day appropriate?
Hmmm. “Closing Day” sounds like a holiday to me, like Boxing Day. Could be, I suppose, as it probably is when startups get their first round of VC funding. Otherwise, I invariably use “Closing Date.”
I was going to say in my original reply that “Date” and “Day” seem to resonate like “jour” and “journee” in French, but then my French is probably suspect at this point (as of this date).
Yeah, but I’m trying to get you to reconsider your habits! If you’re referring to the day the closing occurs, I don’t see why Closing Day wouldn’t work.
Any French is suspect in the glorious era that is dawning. I’ll spare you my specific critique.
Oh dear, are we going back to Surrender Monkey Fries?
As to changing my habits, I’ll consider it when you make a case for it. As I read your post, you said *sometimes* day makes more sense than date, and I agree–I was simply amplifying by providing my algorithm. Do you have one?
Nope. It’s too new. And nothing much is at stake.
Would you entertain the idea that a ‘date’ is never a calendar *point* and always a day-long calendar *period*, and therefore ‘the date that is 30 days after the closing date’ might be better as ‘the date [or day] that *begins* 30 days after the *end of the* Closing Date’? –Wright
But in normal conversation “date” is most often associated with a calendar point. “What’s today’s date”? Why wrench contract usage away from street usage if you don’t absolutely have to? I’m waiting for somebody to show me why we absolutely have to.
Couldn’t agree more about drafting consistently with common usage whenever possible, but the tension is not between common usage and contract usage but between contexts where a point is needed and those where a period will do.
Strictly speaking, a ‘calendar point’ (a) can never be a day, because a day is a period, not a point, and (b) can never be a date, because a ‘date’ (when not being used as a synonym for ‘day’) is a designation, label, name, or reference for a *particular* day-long period, and not the day-long period itself.
So we can speak on the street and in our contracts of ‘the Norman Conquest of 1066’ or ‘the Cameron-to-May transition of 2016’ because the context requires no calendar point and a year-long period will do. (Examples for day-long periods could be found or worked up by someone less lazy than I.)
But in a contract with a provision ‘this section applies only to realty to which Acme has taken title before the effective point of this agreement’, the ‘date of this agreement’ is a period too big to resolve imaginable which-came-first issues.
I think the notion of “calendar point” confuses things, as it suggests that a day is a point in time. It isn’t.
In your second block-example, “date” resonated more for me than “day” did, because I felt like it was in the context of a calculation. I doubt there’a much reasoning there, but that was where my intuition started.
1/ Agree that ‘nothing much is at stake’, but you slipped in a contradiction: ‘a date is a numbered *day* in a month [but] a date is [a day’s designation], not the *day* itself’ (emphasis added). Actually they’re both right.
2/ A ‘date’ is sometimes a day wearing its name badge and at other times the name badge itself. ‘Ken Adams’ is sometimes the man using that name and at other times the name itself.
3/ Am confused by ‘when you refer to *the date of this agreement*, you’re … referring to … the date of reference for the contract’. I thought ‘date of this agreement’ meant ‘signing date’ and ‘reference date’ meant a non-signing date in a ‘dated for reference’ contract. MSCD 2.36.
4/ Which reminds me. Sometimes a contract requires more than signing to take effect eg a contract for sale of realty that for validity requires a notary’s acknowledgment certificate for each signatory. A party’s acknowledgment and the corresponding notary’s certification may happen after the day the party signed. In such a case, the contract is not ‘effective when it has been signed by all the parties’ (MSCD 2.42) and ‘the date of this agreement’ is not the date the last signatory signs. This is probably a timing consideration that the drafter should address ‘wherever most makes sense’ (MSCD 2.39).
Point #4 is interesting, though it doesn’t really affect the question whether you use “day” or “date.” I suspect the issue you’re citing is a peculiarity of some state’s law. Here in Massachusetts a notarization is only to prove (or at least provide prima facie evidence that) the person signing is the person who was meant to sign. It has nothing to do with the validity or effectiveness of the agreement.