Don’t Use “Merely” or “Mere”

A suggestion: Don’t use the word merely in your contracts. It has a dismissive and antique quality (Merely a flesh wound!) that makes it unsuited to contract language. I’d use it only in writing that seeks to persuade. And even then, I’d be careful.

Depending on the context, the fix for merely in contracts might be simply to delete it, or some broader tweaking might be required. Here are some examples (with added language in brackets and in italics):

… and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities.

Accordingly, they shall not be construed against the Lenders or the Agent merely [just] because of the Agent’s or Lenders’ involvement in their preparation.

“Good Reason Event” means the occurrence of one or more of the following events or conditions after the occurrence of a Change in Control: (a) the Company removes the Participant from, or fails to re-elect or appoint the Participant to, any duties or position with the Company that were assigned or held by the Participant immediately before the occurrence of the Change in Control, except that a nominal change in the Participant’s title that is merely descriptive and does not affect rank or status shall not constitute such an event;

The Funds shall not use the Distributor’s name, or any trade or service mark owned by or licensed to the Distributor, in any offering material, shareholder report, advertisement or other material relating to the Funds, other than for the purpose of merely identifying and describing [to identify and describe] the functions of the Distributor hereunder, in a manner not approved by the Distributor in writing prior to such use, such approval not to be unreasonably withheld.

… and the Participant’s Vested Interest shall become distributable as if such a Termination of Employment had occurred subject to the limitations on distributions under such circumstances as set forth in Code Section 401(k) determined as if such limitations applied to the Participant’s entire Vested Interest and not merely [only to] amounts contributed under Code Section 401(k).

And the same applies equally, or more so, to the adjective mere:

The terms of this Amendment are contractual and not a mere recital.

… provided that the term “Participate In” shall not include the mere ownership of less than 5% of the stock of a publicly-held corporation whose stock is traded on a national securities exchange or in the over-the-counter market.

Participants have the status of general unsecured creditors of the Company and the Plan constitutes [only] a mere promise by the Company to make benefit payments in the future.

And see this April 2009 AdamsDrafting blog post on mere condition and mere covenant.

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.