In this November 2007 post, I suggested that the phrase at any time is always extraneous. Well, the same goes for from time to time.
Used With Language of Discretion
The phrase from time to time is used to mean, in essence, “on one or more occasions.” It’s only used with language of discretion, as it wouldn’t make sense to obligate someone to do something on one or more occasions.
The idea is that from time to time serves to make it clear, with respect to a given right, that a party isn’t limited to exercising that right just once.
But often, that’s not an issue.
First, and most obviously, repeated exercise of a right isn’t possible in the case of a right that by its nature can only be exercised once, as in Acme may terminate this agreement in the following circumstances.
Second, if a right allows a party to engage in an ongoing process, it would be odd to state that the party may exercise that right on one or more occasions. If a contracts says Acme may sell Widgets to any Person outside the Territory, you couldn’t reasonably claim that Acme had exhausted that right after having sold one lot of 1,000 widgets.
Third, use of the word any can make it clear, without recourse to from time to time, that a party may exercise a given right on more than one occasion. An example: The Agent may make any Advances to the Borrower on behalf of the Lenders that the Agent deems necessary or desirable to preserve or protect the Collateral.
What does that leave? Instances in which a party is granted a right to take a given action and there’s nothing in the language to preclude the other party from arguing that it’s a one-time-only right.
But in such contexts, I wouldn’t use from time to time. It means “once in a while.” A party may in fact exercise its right episodically, but it may equally well exercise it, for example, twice in quick succession. Instead, I’d use on one or more occasions:
The Bank may
from time to timeon one or more occasions adjust the Advance Rate based on changes in its collection experience with respect to Accounts or other factors relating to the Accounts or other Collateral.A Borrower’s Representative may
from time to timeon one or more occasions deliver to the Agent a Notice of Borrowing or a Notice of Continuation/Conversion.The Issuer may without the consent of the Bondholders
from time to timeon one or more occasions create and issue further Bonds having identical terms and conditions as the Bonds already issued (except for the issue date and the first payment of interest on them).
The presumption should be that absent any language indicating otherwise, a right may be exercised multiple times. But it’s best to make it explicit, so as to avoid giving a desperate litigant even a weak argument to make.
But sometimes, given the context, it’s so clear that the right isn’t a one-time-only right that you don’t need to say so explicitly:
The Maker may
on one or more occasionsprepay all or any portion of the Principal or Interest of this Note to the Holder without premium or penalty.
Use in Restrictive Relative Clauses
From time to time also occurs in restrictive relative clauses modifying a noun phrase. (They’re a fruitful source of redundancy: see MSCD 3.58 and 3.114.)
Here are three examples:
Each party shall execute and deliver any instruments and take any actions that the other party
from time to timereasonably requests to carry out the terms of this agreement.Grantees under the Plan will be those directors, officers, and other employees of the Company that the Committee selects
from time to time.Subject to the Executive’s complying with such policies regarding expenses and expense reimbursement as the Company adopts
from time to time, the Executive may incur reasonable expenses in performing his duties under this agreement.
In each case I’ve stricken from time to time. That’s because restrictive relative clauses are used to refer to an actual state of affairs, and anything beyond that is excess baggage that should either be dropped or addressed elsewhere.
Relation to “At Any Time”
By the way, note that drafters might use at any time in an attempt to convey the same meaning as from time to time. Click here to see reader Troy’s comment about that. But at any time is certainly no improvement on from time to time.
Not all excess baggage is bad.
When you go on a day hike in the mountains in nice summer weather, you’re probably not going to carry your tent, parka, and snow boots with you. But if you’re smart, you WILL bring judiciously chosen “excess baggage” like hat, rain gear, knife, whistle, matches, parachute cord, emergency food. (I never go anywhere in the outdoors without all those things.)
Sure, you’re carrying a little bit of extra weight around. Chances are you’ll never take any of it out of your knapsack.
But it’s cheap insurance against some Very Bad Things that can happen if conditions unexpectedly turn nasty.
I think the same is often true with phrases such as “from time to time.” Sure, they’re repetitive. But repetition promotes learning. And there are times you just don’t want to take chances on whether the reader is going to “get it.” Deciding whether or not to include such a phrase is like deciding whether to bring a parka on a day hike, or to settle for just a windbreaker. It calls for judgment. There’s no hard and fast rule.
D.C.: I think you’re being too easygoing. I acknowledge in my post that from time to time often helps to make categorical what might otherwise be disputed, although I say that on one or more occasions conveys more accurately the intended meaning. But I also point out contexts where from time to time makes no sense. Ken
On re-reading your post, you’re right, you did say there are times when you want to include FTTT (or your preference, OOMO).
I guess I am indeed more inclined to beat the reader over the head with the intended meaning, even sometimes at the expense of pithiness. In a prior life I was involved in more than one lawsuit where the other side tried to get “creative” about language. Once, when I was a mid-level associate, the “creativity” was over language in a settlement agreement I’d drafted in a previous case. Eventually the trial court found for my firm’s client, and the appeals court agreed, but the client still had to spend time and money litigating the issue. Of such experiences are drafting styles forged, I suppose.
Ken, if you’ll indulge me for one more comment, this one a matter of style and not substance: The phrase “from time to time” has a pleasing iambic meter and a well-known vernacular meaning. (If you happen to know the Book of Common Prayer, you may recall the confession of sin in what’s now called Rite I in the U.S. version: “We acknowledge and bewail our manifold sins and wickedness, which we from time to time most grievously have committed ….”) Sometimes old-fashioned language just sounds better.
D.C.: You have a point. Unfortunately, stuff like WITNESSETH and from the beginning of time also sounds good! Ken
Ken, I view it as necessary when describing interest calcualtions with respect to varying amounts of principal that may be outstanding from time to time. “Interest shall accrue on the prinicpal amount of the loan outstanding from time to time at a rate equal to …”
Scott: I recommend the phrase at any given time, as in “Interest will accrue on the principal amount of the loan outstanding at any given time at a rate equal to …” Ken
I personally think “from time to time” is more accurate in my example. I agree that “at any given time” the amount outstanding may be different, but “from time to time,” captures the essence of what we are tyring to say, which is that we are not looking at any one (given) point in time, but rather at the amount outstanding over a period of time. Semantics, I suppose.
Scott: I’ve reconsidered: Just say “Interest will accure on the principal amount of the loan outstanding.” What more do you need?
And I’m the last person to belittle semantics!
Ken
Correct. Well stated. I am a large firm finance attorney. “From time to time” is superfluous and a sign of insecurity. I’ll go further. . . it’s an abomination. Same sulfurous level of hell where these reside: “such”, use of internal section references and letter-based numbering.
Jeez, Ken, the whole point is to make it clear that the principal outstanding will vary from time to time through each period during which interest is to be calculated. With your latest suggestion, nefarious borrowers might insist on using the principal outstanding at the low point in the period. I have seen worse.
I’m far from being a lending guy, but I suggest that the notion of at any given time is inherent in the concept of “outstanding.”
And to return to from time to time, it suggests actions being taking episodically. Interest accrues constantly.
That’s my last word, until such time as I face this issue myself!
The principal changes episodically – from time to time. Further affiant sayeth naught.
I take it the author doesn’t draft a lot of complex trusts?
On my contract I have the following “This title does not limit your duties, and the Company may require you from time to time to do any work within your capacity” You said “on one or more occasions.” Could you please elaborate in the more occasions what is the time frame?. Also I would like to ask you about job spec in contracts (Main Purpose, Key Responsibilities, Key Skills and Experience required – Essential and Desirable) Is it possible to have Key Responsibilities that you were expecting to get task on and never have them?
The “Bondholders from time to time” means the Bondholders registered from time to time or the “then registered” Bondholders. It’s standard legalese. And I’m not a native speaker of English just my experience for over 30 years as a legal translator.
Hi. If you’re referring to the example in my post, I think you’re clearly mistaken.
Maybe.
In my 30 years of experience, I met this phrase on a daily basis, here is an example:
“the directors” means the directors from time to time of the Company
In your example the Bondholders from time to time seems to be the same structure doesn’t it?
With some more punctuation, my understanding is:
The Issuer may, without the consent of the Bondholders from time to time, create and issue further Bonds having identical terms and conditions as the Bonds already issued (except for the issue date and the first payment of interest on them).
It depends on one single comma.
No, “from time to time” modifies “create and issue.”
OK, anyways I found your book very useful in my work as a translator although it is quite a challenge in most cases due to the entirely different legal systems and concepts.