“For the Avoidance of Doubt”

How’s this for a categorical statement: Never use for the avoidance of doubt.

Sometimes a drafter will use this phrase in a contract to introduce language that seeks to clarify preceding language, usually by indicating that something either falls within or is excluded from the scope of the preceding language. In this context, for the avoidance of doubt says, in effect, “excuse us if we state the obvious.”

And that obviousness would allow you simply to delete for the avoidance of doubt, because the language that follows doesn’t alter, in any meaningful way, one’s understanding of the preceding language. Consider, for example, the following provision, which I’ve revised so as to eliminate for the avoidance of doubt (deleted language is in strikethrough; new language is in brackets):

This arbitration agreement applies to all matters relating to this agreement, the RSU Agreement, and the Executive’s employment with and/or termination of employment from the Company, including without limitation disputes about the validity, interpretation, or effect of this agreement, or alleged violations of it, any payments due hereunder or thereunder and all claims arising out of any alleged discrimination, harassment or retaliation. For the avoidance of doubt, this [This] arbitration agreement does not apply to any dispute under the Indemnification Agreement.

When for the avoidance of doubt is used in this manner in a definition, you might want to tidy up the definition by making it a single sentence, as in the following example:

Insider Shares” means all shares of Common Stock owned by an Insider immediately before the Company’s IPO. For the avoidance of doubt, Insider Shares shall not include [and excludes without limitation] any IPO Shares purchased by Insiders in connection with or subsequent to the Company’s IPO.

But at some point, it can be a little ridiculous to state the blindingly obvious. The immediately preceding example would seem a good example of that—instead you might want to strike the second sentence entirely.

Sometimes for the avoidance of doubt serves no purpose, in that the language that follows doesn’t refer to something that falls within or is excluded from the scope of the preceding language:

Nothing in this agreement gives to any Person other than the parties and their successors, the Owner Trustee, any separate trustee or co-trustee appointed under section 6.10 of the Indenture, the Note Insurer, the Swap Counterparty, and the Noteholders, any benefit or any legal or equitable right, remedy, or claim under this agreement. For the avoidance of doubt, the [The] Owner Trustee, the Note Insurer, and the Swap Counterparty are third-party beneficiaries of this agreement and are entitled to the rights and benefits under this agreement and may enforce the provisions of this agreement as if they were a party to it.

Sometimes for the avoidance of doubt is used as a wishy-washy alternative to having a party acknowledge a given fact:

For the avoidance of doubt, [The Seller acknowledges that] InvestBank has implemented reasonable policies and procedures, taking into consideration the nature of its business, to ensure that individuals making investment decisions would not violate laws prohibiting trading on the basis of material nonpublic information.

And often enough, for the avoidance of doubt serves as a low-grade and entirely dispensable form of rhetorical emphasis:

For the avoidance of doubt, nothing [Nothing] in this agreement gives Acme any rights to any of Pharmaco’s compounds or methods of compound synthesis, including the Pharmaco Product, the Pharmaco Technology, any Patent Rights owned, licensed or controlled by Pharmaco, or any Pharmaco Confidential Information.

The Executive will be responsible for paying any tax and employee’s national insurance contributions imposed by any taxation authority in respect of any of the payments and benefits provided under this agreement (other than for the avoidance of doubt any tax and/or employee’s national insurance contributions deducted or withheld by the Company in paying the sums to the Executive).

But even without the benefit of these examples, it’s clear enough from the clunky buried verb avoidance that for the avoidance of doubt is a turkey. (See MSCD 13.7 for more on buried verbs.)

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.

13 thoughts on ““For the Avoidance of Doubt””

  1. I stumbled across this posting from a cross reference, so please excuse the late comment. My sense is that the phrase “for the avoidance of doubt” is a common British usage that has crept into American drafting. I do not agree that striking it does not alter the meaning. In my experience “for the avoidance of doubt” is use to give an example that is not necessarily exhaustive. Removing it runs the risk of appearing to be a complete list, under the maxim “expressio unius est exclusio alterius.” That would be the case in several of your examples. It could often be replaced by a simple “for example,” but not stricken. If you want a phrase that is truly useless, try “to the contrary notwithstanding” — a truly meaningless phrase, inserted solely to make sentences longer and more pondeorus).

    Reply
  2. Theodore: If you’re seeking to follow one provision with some illustrative examples, then “for the avoidance of doubt” is not what you need. Best regards, Ken

    Reply
  3. Just discovered your blog and deeply appreciate your insights. I recently came across the phrase “excluding without limitation” in a contract, and was convinced it made no sense. I am not sure you’ve ever addressed that phrase directly, but see the concept included in one of the example provisions above. What are your thoughts? Isn’t the term “excluding”, by definition, intended to limit?

    Reply
      • Thank you for the response, Ken — I will look forward to the post. Certainly no acknowledgement necessary, though the kind offer is appreciated. For what it’s worth, my working theory is that “without limitation” has become a drafting tic, and because “excluding” sounds close enough to “including”, it sometimes ends up following automatically. On a related note, this week I’ve heard two attorneys use the phrase “separate and apart from” in casual conversation. It’s an uphill battle when many of these phrases have become hardwired, but I believe you are fighting the good the fight.

        Reply
  4. I’ve found that the phrase “for the avoidance of doubt” (or alternatively “for clarity”) are useful for introducing provisions that need not be stated, but which my client would nevertheless like to see in the agreement for their own comfort (and to avoid potential arguments in the future).

    I find this useful because, in such circumstances, the “correct” interpretation of the rest of the contract (i.e. how it should be interpreted if such clarification were not included) should be the same as with such clarification. But, the fact that we are including the clarification creates the implication that it DOES need to be stated and therefore that the rest of the contract should not be interpreted (in our, the drafter’s, mind) in the same way as if that clarification sentence didn’t appear at all (otherwise, why did we bother including that extra sentence if we didn’t think we needed it?). In other words, I’m worried about the principle of interpretation that all provisions written into a contract are presumed to have some meaning.

    However, including such a clarification sentence with the “for avoidance of doubt” intro (to me) indicates that the drafter does not believe that the sentence is necessary for the contract (i.e. the drafter believes that this sentence does not change the interpretation of the rest of the contract generally, but is merely a clarification for …well…the avoidance of doubt). In other words, it’s there because it was something on our minds and even though we think the contract would otherwise cover the issue as intended, it’s safer for us to just call out the specific issue now rather than having to argue about how the contract should be interpreted on that point in the future.

    My philosophical preference of course is to draft without these one-off clarifications and rely on the general provisions, which should (and need to) be drafted to cover the point anyway (and indeed, that is probably a stronger approach because it forces us to re-examine the general language in the context of a specific concern, which should lead to improved general language overall), but I have seen circumstances where the clarification sentences are useful.

    Do folks agree?

    Reply
  5. After a discussion with a colleague about this phrase (which I see all too frequently here in Australia), I searched this site and, lo and behold, Mr Adams has ruled.

    I agree. In fact, my experience has been that so often the phrase creates doubt when there would not otherwise be any. I have seen several examples where the words following ‘for the avoidance of doubt’ would be clear in themselves, but the inclusion of the offending phrase suggests that those words are merely a clarification or example of the preceding sentence or clause, rather than a stand-alone provision. What would have been clear has been rendered ambiguous.

    To give a different (and more obviously wrong drafting example), today I saw a clause to the effect:

    # Notices may be served by:

    (x) email to the email address stated in the schedule;

    # For the avoidance of doubt, notices may not be served by email.

    Of course, the magic words do not serve in any way to reduce doubt in that case!

    Reply
  6. This phrase is totally unnecessary. If what follows is clear, the introductory phrase is not needed. If what follows is not clear, the introductory phrase won’t prevent doubt from being present.

    Reply

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.