MSCD 16.29–31 deals with “rhetorical emphasis.” That’s the term I use to describe language you shovel into a contract provision to show that you really, really mean it.

Every so often I encounter new examples of rhetorical emphasis. (See for example this August 2008 blog post about in all respects.) Here’s another symptom of rhetorical emphasis: fully.

More often than not, fully adds nothing, as the provision in question is all-encompassing even without fully. Here are some examples, in all their EDGAR mediocrity:

The provisions of this Agreement are severable, and if any part or portion of it is found to be unenforceable, the other portions shall remain fully valid and enforceable.

… the Improvements have been fully completed in all material respects in a workmanlike manner of appropriate quality for industrial facilities …

all of which rights and remedies are fully reserved by the Agent and the forbearing Holders.

… provided, however, that nothing herein shall be deemed a waiver with respect to any other defaults under the GE Flooring Line, or failure of any Borrower or any Guarantor to comply fully with Section 9.10 or any other requirement of the Loan Agreement in any other respect.

All deficiencies asserted in writing or assessments made in writing as a result of any examinations by any Tax Authority of Tax Returns of any of the Companies have been fully paid.

Buyer shall take all steps necessary to fully effectuate the provisions of this Section 3.

But you’d be hard-pressed to omit fully from some terms of art, for example validly issued, fully paid and nonassessable; fully executed (I’d say “signed by all the parties”); and perhaps, with respect to stock options, fully vested.

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.

2 thoughts on ““Fully””

  1. I absolutely agree with your parenthetical that “signed by all the parties” is preferable to "fully executed." I see "executed" where its context could mean either "signed" or "performed" all the time!

  2. I wonder if the drafter is trying to distinguish full completion (in construction contracts, final completion), full compliance from material or substantial compliance, and fully paid from partially paid. But the drafter has undercut that interpretation by adding a materiality standard.

    The first is important. A party may want to condition certain events on all punch list work being completed. The last seems unecessary; partially paid is also partially unpaid. The middle one raises the question whether a court would consider substantial compliance to be an adequate subsitute. I doubt that inserting "fully" would protect you from a court determining that susbtantial compliance is good enough.

    I agree that there seems to be no purpose to using "fully" in the other examples.


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