“Fails To” Versus “Does Not”

The phrase fails to (and its variants) is utterly standard in contracts, but you could always use instead does not (and its variants). Some grubby examples from EDGAR:

The Indemnifying Party shall not be relieved of its obligations to indemnify the Indemnified Party with respect to such claim if the Indemnified Party fails to [read does not] timely deliver the Indemnity Notice …

If the infringement of the CRISPR Patent Rights is solely in the Tracr Field and not in the CRISPR Field, and CRISPR fails to [read does not] bring any such action or proceeding with respect to infringement in the Tracr Field within …

If such Dissenting Stockholder withdraws its demand for appraisal or fails to [read does not] perfect or otherwise loses or waives its right of appraisal …

… or the inducement of others to fail to [read not to] cooperate …

If simpler is always better, isn’t does not always better than fails to? I know that does not doesn’t connote falling short the way fails to does. But that connotation isn’t necessary, and it might be inappropriate. I suggest that’s the case in the second and fourth examples above.

What do you think?

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.

5 thoughts on ““Fails To” Versus “Does Not””

  1. Ken:

    If you need to refer back to the failure to do the thing in a closely succeeding sentence, saying “fails to” allows you to refer to “that failure.” I can;t think of a similar way to treat “does not.” Absent that usefulness, “does not” only seems very slightly simpler, though. It’s the same number of letters, though I guess using an infinitive is slightly more complicated grammar.


      • Totally agree that “does not” is more direct and simple way. However, I opt for “fail to” just in case I have to use “failure”, otherwise, “does not” accomplishes its mission.

  2. Dear Ken,

    I find the whiff of judgment in ‘fails to’ less objectionable than the flab of ‘does not’, so I avoid the latter when possible.

    Compare ‘I do not think so’ and ‘I think not’; ‘I do not have any’ and ‘I have none’; ‘They do not speak English’ and ‘They speak no English’.

    ‘Fails to’, if deemed a vice, admits of other possible fixes. Here are revised versions of the EDGAR specimens that avoid both ‘fails to’ and ‘does not’:

    (1) Unless the Indemnifying Party timely delivers the Indemnity Notice, the Indemnifying Party remains obligated to…

    (2) If CRISPR brings no such action or proceeding for infringement in the Tracr Field within …

    (3) If such Dissenting Stockholder withdraws its demand for appraisal or, by non-perfection or otherwise, loses or waives its right of appraisal …

    (4) In the fourth example, your fix gets rid of ‘fail to’ without using ‘does’. Well done.


  3. I think this is spot on. I’m going to stop accepting “fails to” and insert “does not” in my documents. Thanks Ken. The Yoda principle applies as always: “There is no try in the Force, there is only do”.


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