One of the categories of contract language is language of recommendation. It’s discussed at MSCD 3.332, and I introduced the idea in this 2011 post. Obviously enough, you use it when one party is recommending something to another party: The Company recommends that the Participant consult with his or her personal advisor ….
I’ve always though that language of recommendation is a little insubstantial. I’ll now beef it up a little by pointing out that it involves verbs other than recommend. For example, The Company [reminds] [encourages] the Participant ….
Because this category involves more than the verb recommend, should I call it something other than language of recommendation? I’m open to the idea, but so far I haven’t thought of an alternative that I prefer. Any ideas?
18 thoughts on “Expanded Language of Recommendation”
Language of nagging?
What a party really means when it says “we recommend,” “we advise,” “we encourage,” etc. is that it won’t be liable for any harm that befalls the other side if it doesn’t do the things recommended, etc. Apart from drafting the agreement to read that way, one might call these CYA exercises “language of extrication.”
Not always. Sometimes the party is saying something because a law or industry association requires it to be in the contract. (Thus, I think of it as language of nagging.)
Chris, if that’s the case then the proper form would be an acknowledgment that so-and-so requires it. Or more pertinently, if the association requires that the party in between it and the “recommendee” obtain assent to it, then it should be an actual obligation of the recommendee, not just a suggestion by the in-between party. A typical “compliance with law” clause ought to cover any actual legal requirements.
I see this, for example, in contracts involving the payments industry where issuing banks demand certain things in their distributors’ and program managers’ contracts with others down in the distribution chain; but those are absolute requirements, so shouldn’t be phrased as recommendations.
Can you provide a context in which that kind of association requirement would only appear as a recommendation in the contract?
Sure. We do background checks for employment. Our industry association says that our contracts must (or should — I can’t recall) recommend that our customers discuss how they make decisions on our reports with their legal counsel. I have other provisions that do a better job shifting risks appropriately, but I nonetheless include this nagging because the industry association wants it.
I agree with Vance.
The fact that a rule requires the use of certain advisory language doesn’t affect the category to which the language belongs.
Both Vance and Chris recognize that the purpose of the language is “extrication” or risk allocation, but other, non-advisory contract language also allocates risk, so that won’t do as a name for language that attempts to allocate risk by the specific means of giving advice.
“Language of advice” might do, but since “advise,” like “recommend,” is one of the verbs for which Ken seeks an umbrella term, it may be no better than the current name.
I see no sin in having the name of one member of the set serve as the name for the set, whether “recommendation,” “advice,” or some other member.
After all, “tosspot” is itself a “tosspot word,” like breakfast, killjoy, makeweight, scarecrow, lickspittle, and the rest, and no one complains that tosspot should not be the umbrella word.
I don’t think we’re really discussing taxonomy here. A contract is simply not a proper place for avuncular admonishments, so the point is always a) to make the “advisee” acknowledge that some third party has made a recommendation (in which case you use language of acknowledgment to do so), and b) to let the “advising” party off the hook if the other party doesn’t follow that advice (for which you use language of policy). As to cautions to get legal advice, I would think that is an independent ethical obligation of the attorney representing the drafting party, who must *always* advise unrepresented counterparties to get the assistance of counsel. I sometimes see acknowledgments in contracts that the parties have obtained legal assistance (or have waived it), which should be adequate in the situation Chris described.
In MSCD 3.334, I say that you could use advises instead of recommends, “but recommends is preferable, as having one party give another advice suggests a relationship involving trust.” I’m not sure how compelling that is, but for the moment I’m inclined not to use “language of advice” as the label.
So “language of recommendation” should be renamed “language of extrication” but under either name, it has no proper place in contracts?
In a manner of speaking, yes. I’m not saying you can’t refer to these recommendations, but the phrase “party X recommends” doesn’t do any work. You need to say “party Y acknowledges that party X (or somebody else) recommends…” Or “party X will have no liability if party Y does not comply with the recommendation…” I hope you appreciate that I was being flippant with my “language of extrication” nomenclature.
This is very interesting. I want to digest it all before wading in myself.
Vance, I don’t care what you say, I still agree with you.
Ken, as you digest this, keep in mind your starting insight, “I’ve always thought that language of recommendation is a little insubstantial.”
If Vance is correct that it does no work, maybe it should lose its status as a category.
*sputters indignantly* The categories of contract language describe the semantic function of contract language. Further analysis is required to determine what categories you use for what function, and how.
Language of recommendation (by whatever name) serves a semantic function, so it will always feature in the taxonomy. Whether it’s useful or not is a separate question.
“Whether it’s useful or not is a separate question”? *chuckles avuncularly* Separate from the question whether language is “contract language” at all?
Language of praise, thanksgiving, contrition, petition, intention, belief, and recommendation all serve semantic functions. If one or more of them “does no work” in a contract in the sense that it is a partial or roundabout way of expressing a legal relation (such as allocation of risk or imposition or negation of duty) better expressed by directer language of another category, why count them as categories of “contract” language to begin with?
I love those extra categories!
Two defenses of language of recommendation: First, it’s actually used in contracts. And second, I haven’t yet accepted that, as Vance suggests, it’s always clearer to use another category of contract language: using language of recommendation could be more economical than having the other guy acknowledge whatever the issue is. I’ll be looking into this further.
I did not think I would live to see the day when Ken Adams defended a kind of contract language on the ground that it’s been done that way in the past (“[I]t’s actually used in contracts”? So is “witnesseth”).
Your second “defense” is reasonable — you’re still thinking it over. So am I. Maybe language of recommendation can be a throwaway attempt at CYA where full protection is impossible or not worth the effort because the danger to be averted is remote. (Like saying “promptly” instead of specifying a time frame when dealing with remote contingencies.) Or maybe recommendations are good P.R., or fulfill a legal or industry requirement, and therefore recasting into another category to “do work” isn’t appropriate.
You misunderstand me, Sir! Or rather, ahem, I was unclear.
What I meant is that language of recommendation is used in contracts, so it’s helpful to identify it and add it to the taxonomy. What one decides to do, or not do, with it is a separate matter.
Language of benevolence (It seems to me like a party using this language is giving ‘free’ advice…which leads to my next ideas)
Language of advice
Language of assistance