“Effluxion of Time”

I was frittering time away on Twitter last night, when out of the blue this tweet from @IPDpdraughts came my way:

“Affluxion of time”? Some rooting around showed me that affluxion of time does indeed exist, although with only 25 instances on EDGAR, it’s a lesser variant of effluxion of time (451 instances). And effluxion of time is what appears in Black’s Law Dictionary:

effluxion of time (i-flək-shən) (17c) The expiration of a lease term resulting from the passage of time rather than from a specific action or event. — Also termed efflux of time.

Evidently effluxion of time is the raging-popinjay alternative to referring to the end of a contract’s term. It appears to be an English thing, though Mark Anderson will you assure it’s not representative of English drafting, which we all know *cough cough* is a paragon of modernity.

Here are examples from a share purchase agreement, a loan agreement, and a lease, all of them with some connection to England:

It is agreed and acknowledged that Completion shall take place on 12 July 2019 (the “Scheduled Completion Date”). For the avoidance of doubt, Completion shall not be conditional on any other conditions save for the effluxion of time.

If any of the Initial Charters is frustrated, terminated (except by mere effluxion of time or in the case of Total Loss of a Borrower Ship), cancelled or rescinded or purported to be cancelled or rescinded prior to its expiration date, the Borrowers shall prepay the Loan.

Termination of the Tenancy means the determination of this Lease whether by effluxion of time, re‑entry, notice, surrender (whether by operation of law or otherwise) or by any other means whatsoever

It might be that affluxion of time in a North American variant. It appears in these three examples, the first two from a lease and a option plan, both apparently drafted in the U.S., and the third from a consulting agreement, apparently drafted in Canada:

Notwithstanding anything herein contained, the Landlord shall be under no obligation to repair or maintain the Tenant’s installations, alterations, additions, partitions and fixtures or anything in the nature of a leasehold improvement made or installed whether by the Tenant or by the Landlord on behalf of the Tenant; and further, notwithstanding anything herein contained, the Landlord shall have the right upon the termination of this Lease by affluxion of time or otherwise to require the Tenant to remove its installations, alterations, additions, partitions and fixtures or anything in the nature of a leasehold improvement made or installed by the Tenant or by the Landlord on behalf of the Tenant and to make good any damage caused to the Leased Premises by such installation or removal.

“Vested” shall mean, in relation to all or any part of the option, as appropriate, when any relevant condition (including, for the avoidance of doubt, the affluxion of time) has been satisfied, as confirmed by the Board of Directors (or, where relevant, waived) and “Vesting” and “Vest” shall be construed accordingly. For the avoidance of doubt, unless stated otherwise, any part of the option which Vests does not automatically become exercisable.

In the event this Agreement is terminated for any reason whatsoever, whether by affluxion of time or otherwise, the Consultant shall forthwith upon such termination return to the Corporation each and every copy of any Confidential Information (including all notes, records and documents pertaining thereto) in the possession or under the control of the Consultant at that time.

Needless to say, effluxion/affluxion of time is DEFCON 1 legalistic nonsense. If you ever see it, activate the terminate-with-extreme-prejudice protocol.

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.