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:
https://twitter.com/neil_neilzone/status/870596648132628480
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.
When anyone asks me why I don’t define and capitalize “Agreement,” I say “In the sentence ‘this sentence has five words,’ would you capitalize ‘sentence’?” That usually ends the discussion.
+!
You underestimate the ingenuity of the traditionalist. “But ‘agreement’ could refer to part of a contract!” “But what about the attachments!”
A roll of the eyeballs and a shake of the head usually does it for the second round; they know how ridiculous and feeble those “arguments” sound.
One context in which that’s not such a dumb question is a master agreement that will be triggered by future purchase orders, or work orders, or any of the myriad of other names that such instruments go by. It is often useful, or at least convenient, for example, to specify that “Master Agreement” includes only the overarching instrument and “Agreement” includes the Master Agreement plus any purchase orders.
I think that’s awkward and counterintuitive. It’s also unnecessary: I draft master agreements without having to do that sort of thing. (That sounds more blunt than I intended.)
Ken, while I concede that you don’t need to define the agreement (confessing that 99% of the contracts I’ve ever seen or drafted do just that), I hope that your criticism this is independent of explicitly saying what documents comprise the agreement.
In my industry, contracts are comprised of a kit of many, many parts, and it is common for the schedules etc. to vastly exceed the number of pages in the terms. Plus, as a construction litigator colleagues once observed, 50% of construction disputes sadly involve the question ‘what WAS the deal between the parties’? Because of this, and because counterparties often want various pre-contract submissions included, it is absolutely necessary, IMHO, to list the parts. From there, it’s a short slide to defining that all of this is the ‘contract’ or ‘agreement’.
If you refer to schedules in a contract, that’s enough to make them part of the contract without your needing to say so. If you don’t refer to them, then just say somewhere that the schedules are part of the contract. You don’t need to resort to the defined term this Agreement.