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.

2 thoughts on ““Duly””

  1. This gets into deeper waters than show on the surface. By analogy, in Connecticut, a mechanic’s lien arises when a contractor starts working on a property. It lapses 90 days after the work stops, unless the contractor files a certificate of mechanic’s lien on the land records and serves a copy on each owner.

    Unfortunately, the statutes refer to things like “no such lien shall be valid unless” and “if such a lien is invalid but unreleased of record.”

    This sets up categories of “valid liens” and “invalid liens.”

    Logically, the first phrase (valid lien) is redundant and the second (invalid lien) is self-contradictory.

    The way out is to redraft the statute to say “no such lien shall arise unless,” “no such lien shall continue unless,” and “If any such lien is extinguished but a certificate of lien is unreleased of record.”

    The bottom line is that your conclusion is exactly right: “[W]hen occurs in a term of art with broader substantive implications, leave alone. But outside of those contexts, is usually redundant.”

    A final mop-up would include close analysis of the three classes you seem to set up, Ken: (

    a) Use of in “terms of art with broader substantive implications,”

    (b) Use of in “terms of art with[out] broader substantive implications,” and

    (c) Use of outside of terms of art.

    I’m a little fuzzy on the distinction between (a) and (b), because I find it really hard to come up with a satisfactory definition of “term of art” in the first place.

    The following one sure doesn’t cut it: “A term of art is a word or phrase that has a particular meaning.” Source: West’s Encyclopedia of American Law Term of Art

  2. A piece of legislation requires a driver licensing authority to suspend a person’s license upon being “duly notified” by police that a certain trigger event has happened (e.g. paid a particular traffic fine). The legislation gives the driver a right of appeal if the licensing authority suspends the licence. The only ground of appeal permitted is that the licence was suspended other than as required by the regulation.

    The police have improperly/unlawfully/erroneously notified the licensing authority to suspend a person’s licence. The driver appealed against the suspension. The licensing authority’s defence is that it was required to suspend the licence because it was “duly notified”, and it says the mistake happened at the police dept, and that the appeal must fail because the licensing authority was obliged to comply with the notification, and the licensing authority is not liable for any of the drivers’ legal costs or losses in rectifying the problem, and that there is no ability for the driver or the court to look beyond the fact that a notification occurred.

    The licensing authority’s opposition to the appeal assumes the word “duly” has no meaning. i.e. as long as the authority complies with a police notification it is immune from any consequences.
    The driver says “duly notified” requires the notification to be “in accordance with legal requirements”, and if the police made a mistake then the notification was not in accordance with legal requirements and therefore the authority was not “duly notified”.

    If legislators thought the word “duly” had no meaning then they would not have inserted that word in the legislation. The section would simply have said “…if the authority is notified that…”.
    That would make notification simpliciter the basis for suspending the license, and whether the notification was improper or unlawful would be irrelevant. i.e. if the legislators wanted to prevent appellants challenging the legitimacy of the notification then the word “duly” would have been deleted.

    Do you think the words “duly notified” give the phrase a different meaning to simply being “notified”?


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