Double Throat-Clearing!

One of my favorite categories-of-contract-language topics is what I call “throat clearing.” That’s when you have an extraneous verb structure bolted to the front end of a sentence.

I haven’t discussed throat-clearing much on this blog, so here’s the first section of MSCD‘s treatment of the subject:

I mention this because of an exchange I had today with Matt Boyd on the LinkedIn group A Manual of Style for Contract Drafting. Here’s the pertinent extract:

Of course, I turned to EDGAR and found what I was looking for:

The Lead Manager hereby agrees that it undertakes that it shall: (i) submit a photocopy of this Agreement being executed by all the parties hereto …

It is further agreed that the insurer undertakes that it shall not contend that a wrongful act was committed recklessly by any insured unless it can be proven that …

So double throat-clearing exists! Two redundant verb structures stuck at the front of a sentence! In the first example, The Lead Manager shall is all that’s required; in the second example, The insurer shall not. But I don’t expect to start seeing double throat-clearing all over the place.

I draw no profound conclusions from all this, except that I’m reminded yet again that traditional contract language is profoundly weird.

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.