Footnotes in Contracts?

A few days ago a reader asked me about a recommendation he saw online to the effect that it might be a good idea to use a footnote to explain why a negotiated contract provision had been written in a particular way.

And another reader just asked me about using footnotes in a contract. Someone in his company had proposed including a footnote to elaborate on the meaning of a particular word.

I recommend that you never use footnotes in a contract. Just say in a regular provision whatever needs saying.

Using a footnote to suggest that what’s in the footnote is of lesser significance is analogous to using the phrase in particular to highlight a provision (see MSCD 13.343).  Treat all provisions the same; leave it to the reader to attribute significance.

Using a footnote to elaborate on the meaning of a word, phrase, or provision is analogous to using the phrase for the avoidance of doubt (see MSCD 13.220 or this 2006 blog post). Say something once clearly rather than trying once, failing, and then taking another crack at it.

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.