“Formally” and “Formal”

The word formally occurs fairly often in contracts. It appears in 994 contracts filed as “material contracts” on the SEC’s EDGAR system in the past year. Here are some examples:

Lender may conclusively rely on such certificate until formally advised by a like certificate of any changes therein.

All written or formally presented information, including the Information Memorandum …

… Receivables of a Borrower (a) that represent valid obligations incurred by a Customer for software, goods or services licensed, shipped and delivered, installed or completed under valid contracts of license, sale, or service that have been formally awarded to a Borrower …

… nothing herein shall require the Purchaser, in connection with the receipt of any regulatory approval, to agree to … litigate or formally contest any proceedings relating to any regulatory approval process in connection with the Contemplated Transactions.

… (iii) interest be claimed on overdue interest, unless (A) the overdue interest has accrued over a period of at least one year, and (B) the interest has formally been claimed by the Lender …

The world formal occurs even more often, as in the following examples:

Unless formal pleadings are waived by agreement among the parties and the referee …

… without the necessity of commencing a foreclosure action with respect to this Mortgage, making formal demand for the Rents, obtaining the appointment of a receiver or taking any other affirmative action …

All arbitrators must be neutral parties who have never been officers, directors, employees, contractors or agents of the parties or any of their Affiliates, must have not less than ten (10) years experience in the oil and gas industry, and must have a formal financial/accounting, engineering or legal education.

I find formally and formal both a bit odd. They suggest that to fall within the provision in question what matters isn’t just the action taken or the thing involved but also the level of formality. The effect is generally incongruous. Referring to contracts having been “formally awarded” suggests that a level of pomp is required. And referring to “a formal … education” suggests that the drafter had thought it necessary to make it clear that the school of hard knocks wouldn’t do.

If you have any guidelines in mind, make them explicit rather than using formally or formal. If you think I’m missing something, please let me know.

Incidentally, 62 material contracts filed on EDGAR in the past year use the phrase formally known as. I wager that in each case the drafter intended to say formerly known as. Using formally for formerly is a commonplace solecism.

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.