“Force and Effect”

In MSCD, I don’t attempt to list every phrase that exhibits redundancy. Instead, I just give some examples. The main point is that drafters should test any string of two or more closely related words or phrases to determine whether each of them serves a function.

But some phrases exhibiting redundancy are so prevalent that one might as well point them out. Today I spoke with a friend regarding force and effect. I then checked EDGAR and found that the phrase had featured in 2,991 “material contracts” filed in the past month. That makes force and effect a fixture of the contract landscape. Garner’s Dictionary of Legal Usage says that it has “become part of the legal idiom.”

The phrase is used in of no force and effect and in with the same force and effect, but mostly you see it in in full force and effect. Here are some examples:

Notwithstanding any termination of the Revolving Commitments or repayment of the Loans, or both, the obligations of the Borrower under this Section 3 shall remain in full force and effect until … .

This Guarantee shall remain in full force and effect until … .

and each of the agreements and covenants in the Credit Agreement and the other Loan Documents is hereby reaffirmed with the same force and effect as if each were separately stated herein and made as of the date hereof;

If, for any reason, any provision of this Agreement, or any part of any provision, is held invalid, … and each such other provision and part thereof shall to the full extent consistent with law continue in full force and effect.

Executive further agrees that if any portion of the covenants set forth in this Agreement or the application thereof, is construed to be invalid or unenforceable, the remainder of the covenant or covenants shall then be given full force and effect without regard to the invalid or unenforceable portions thereof … .

But the phrase’s ubiquity can’t hide that you’d be better off getting rid of force and or full force and, as the case may be.

Garner suggests that “the emphasis gained by force and effect may justify use of the phrase, more likely in drafting (contracts and statutes) than in judicial opinions.” But that misconstrues the nature of contract language—it doesn’t serve to persuade anyone of anything, so that sort of emphasis has no place in a contract.

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.