“Forever” in Language of Performance

In this recent post on indefinitely I considered the best way to express that a given obligation lasts forever.

That brought to mind a different, and problematic, use of forever, namely in language of performance. Consider the following examples:

The Executive, on behalf of the Executive and the Executive’s heirs, executors and assigns hereby releases and forever discharges the Company …

Each of the Parties forever waives any rights to raise the use of a fax machine todeliver a signature …

… each of the Borrower and the other Credit Parties, on behalf of itself and its successors and assigns (collectively, the “Releasors”), hereby forever waives, releases and discharges to the fullest extent permitted by law …

Language of performance is used in a contract to indicate actions accomplished by means of signing the contract. To the extent that forever suggests continuous action, it’s incompatible with language of performance.

But what forever seeks to convey in this context is irrevocability rather than continuous action. As I discussed in this October 2009 AdamsDrafting blog post, that raises a different issue. If I waive something, or discharge someone, there’s nothing to suggest that it’s temporary, so why use forever or irrevocably? After all, you don’t say Acme hereby forever [or irrevocably] purchases the Widgets.

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.