Don’t Use “Both … And” As a Linking Expression

In various ways, the word both comes in handy in contracts.

It’s used to express universal quantification in contracts with two parties:

No amendment to this Agreement shall be valid unless made in writing and executed by both parties hereto.

And you can use both to make it clear whether you’re referring to one or both of a group of two. For example, MSCD 11.33 features this example: Acme may construct a factory in California, in Florida, or in both states. And here are two examples from EDGAR:

… and retain commissions from one or both parties to the transaction …

… which, with notice, lapse of time or both, would result in …

I could offer other legit uses of both. But we can dispense with one use of both for purposes of contracts, namely (to quote the Cambridge Dictionary) use of “both … and to emphasise the link between two things.” Yes, it “makes a stronger connection than and alone.” Here’s an example offered by the dictionary:

Both Britain and France agree on the treaty. (stronger link than Britain and France agree on the treaty.)

But contracts are not the place for degrees of emphasis. Instead, they’re the place for yes and no, black and white. The following examples from EDGAR feature both … and as a linked expression, and I’d delete both:

The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

… additions to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders of Securities issued under this Indenture; …

… provided that any such amendment or supplement is acceptable to both the Company and LACQ acting reasonably …

Evidence of such disability shall be certified by a physician acceptable to both Employer and Employee.

… the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or …

Such legal counsel may represent both Indemnitee and the Company (and any other party or parties entitled to be indemnified by the Company with respect to such matter) unless …

When the two things being linked are lengthy, in that bloated, legalistic way, use of both signals to the reader in advance that the link is accomplished with and. I’ve pasted at the bottom of this post an example of that. But if you’re faced with that sort of situation, the benefit of using both in that manner would likely be paltry compare with the benefit of drafting the entire provision more clearly.

Now, is anything at stake in this? Yes, in three ways. First, in this context, both is a wasted word, and over the course of a contract wasted words add up. Second, if you use wasted words, don’t be surprised if someone attempts to attribute significance to them, to your detriment. And third, you’re either in complete command of your contract language, or you’re not. I’d rather aim to be in complete command.

Now, here’s that bloated example:

The Purchaser agrees that it may make offers and sales of the MFP Shares in compliance with the Securities Act and applicable state securities laws only to Persons that are both: (A)(i) Persons that it reasonably believes are QIBs that are registered closed-end management investment companies, the common shares of which are traded on a national securities exchange (“Closed-End Funds”), banks or entities that are 100% direct or indirect subsidiaries of banks’ publicly traded parent holding companies (collectively, “Banks”), insurance companies or registered open-end management investment companies, in each case, pursuant to Rule 144A or another available exemption from registration under the Securities Act , in a manner not involving any public offering within the meaning of Section 4(a)(2) of the Securities Act , (ii) tender option bond trusts (or similar investment vehicles) in which all investors are Persons that the Purchaser reasonably believes are QIBs that are Closed-End Funds , Banks , insurance companies or registered open-end management investment companies or (iii) other investors with the prior written consent of the Fund and (B) Persons that are either (i) not a Nuveen Person, or (ii) a Nuveen Person, provided that (x) such Nuveen Person would, after such sale and transfer, own not more than 20% of the Outstanding MFP Shares, or (y) the prior written consent of the Fund and the holder(s) of more than 50% of the Outstanding MFP Shares has been obtained.

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.