Exploring Further “Is Not Prohibited From”

This is a little subtle. Bear with me.

In this 2017 post, I consider whether it’s OK to use in a contract, unadorned, the phrase is not prohibited from, as in Acme is not prohibited from selling Widgets to Uzbekistan.

The vigorous discussion in the comments to that post considers whether you should make it clear that is not prohibited from relates just to the regime under the contract, that it doesn’t preclude Acme from being subject to other constraints that prevent it from selling Widgets to Uzbekistan.

After further thought, I find myself OK with the position I took in the comments to that post:

I don’t think it’s necessary to make it clear that absence of prohibition is achieved exclusively by agreement of the parties. After all, nothing about Acme may says that it expresses only agreement of the parties as opposed to some extracontractual mechanism. And nothing about language of policy, for example The Option Price will increase to $5, says that it’s achieved through the contract; saying so in the contract is all that’s required.

But I now think it’s appropriate to leave it to drafters to decide whether they want to make it clear that absence of prohibition is considered purely from the perspective of the contract. That being the case, what’s the best way to express that?

The phrase is not prohibited from is a passive-voice structure. In the 2017 post, I suggest an active-voice structure: This agreement does not prohibit Acme from …. But on further reflection, I’m not keen on making the contract an actor. The contract isn’t doing the prohibiting, it’s the regime under the contract that’s doing the prohibiting, and that would make for an awkward active-voice structure.

That leaves me with two alternatives:

  1. Under this agreement, Acme is not prohibited from ….
  2. Nothing in this agreement prohibits Acme from ….

I’m inclined to go with the first option. It’s a word longer but is more straightforward, as it applies the negation directly to the concept of prohibition.

But if the other party thinks that broader legal constraints might prevent Acme from selling Widgets to Uzbekistan, it might want to add to the contract something like this: Acme acknowledges that it is responsible for determining whether it is subjected to broader legal constraints that would prevent it from selling Widgets to Uzbekistan. That would render redundant anything done to make it clear that absence of prohibition is considered purely from the perspective of the contract.

Any thoughts?

(By the way, issues raised by is not prohibited from apply also to is not required to.)

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.