“Duly”

How did duly ever escape my attention?

Last week Bradley Clark sent the following tweet my way:

I realized that Bradley was giving me way too much credit—I’d never written about duly. So here goes.

According to Black’s Law Dictionary, duly is an adverb meaning “In a proper manner; in accordance with legal requirements.” But usually, the verb or verb phrase that duly modifies itself incorporates the notion of “in a proper manner,” making duly redundant.

Consider the following example:

The execution, delivery and performance by such party of this agreement have been duly and validly authorized by all necessary corporate or similar proceedings (including, without limitation, approval by the board of directors and, if necessary, shareholders). This agreement has been duly executed and delivered by such party and constitutes the legal, valid and binding obligation of such party enforceable against such party in accordance with its terms.

If something has been authorized, then necessarily it was properly authorized. If the appropriate procedures hadn’t been followed, then no authorization would have been granted. Similarly, if, say, an imposter signs on behalf of a party, the contract won’t have been executed signed by that party.

That’s why Garner’s Dictionary of Legal Usage, at 301, says, with respect to duly authorized, “Because authorize denotes the giving of actual or official power, duly (i.e., ‘properly’) is usually unnecessary. Likewise, duly is almost always redundant in phrases such as duly signed.”

Here’s another example:

Notices and all other communications provided for in this Agreement … will be deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below: …

The duly is redundant—because the provision specifies what’s required to give notice under the contract, it follows that any notice that complies with those requirements will have been properly given.

But duly can also be used to allude to a broader range of concerns. For example, “An opinion that a company has been ‘duly incorporated’ means that the incorporators complied with all requirements in effect at the time of incorporation for the company to be incorporated under the applicable corporation statute and that government officials took the steps required by that statute to bring the company into existence as a corporation.” Scott T. Fitzgibbon, Donald W. Glazer & Steven O. Weise, Glazer & Fitzgibbon on Legal Opinions § 6.2 (3d ed. 2012). Because in this context “duly incorporated” constitutes shorthand for a parcel of issues, the word “organized” can’t by itself incorporate the notion of “in a proper manner,” so the word duly isn’t redundant.

Similarly, “An opinion that a company has been ‘duly organized’ means that the company has been duly incorporated and that it has taken additional steps to establish its basic organizational structure.” Id. at  § 6.3.

The phrases duly incorporated and duly organized feature in contracts as well as in legal opinions.

So when duly occurs in a term of art with broader substantive implications, leave duly alone. But outside of those contexts, duly is usually redundant.

As in the first example above, duly is often paired with validly. In contracts, redundancy loves company.

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.