How do you express the concept of not complying with the law, but without expressing it in the negative? (In other words, without using not, or fails to, or the prefix non-, as in noncompliance.)
Here are some verbs you could use: violates, breaches, contravenes, infringes, breaks.
But which should you use? If it’s a popularity contest, here’s a rough count of the number of contracts filed on EDGAR in the last 90 days that use those verbs (and the related nouns) to express not complying with the law:
- violate (7,881)
- breach (1,376)
- contravene (789)
- infringe (96)
- break (9)
Here’s a different kind of popularity contest—a Google Ngram graph for each of those verbs plus the law, showing how frequently each phrase has been used in the past 220 years:
The results for break show a reversal of fortune: last on EDGAR, first in the Ngram graph. Violate, the winner on EDGAR, comes in a decent second on the Ngram graph.
What to make of this? I’m not sure.
It would seem odd to use breach, contravene, or infringe with the law, as they’re the major losers in the Ngramp graph. That leaves us with break and violate.
But it might be relevant to consider the verb to use with contract instead of law:
Break is again the winner, with breach a respectable second and violate a distant third. But this context isn’t relevant for contracts, where you usually want to be more specific about what part of a contract you’re dealing with.
And here are the results with obligation:
This time, violate is the winner, with breach second and break nowhere.
What to do? If you want one verb to use with law and obligation, your best choice would seem to be violate.
I have a soft spot for break the law. I don’t think there’s any way to reasonably argue that in this context break doesn’t convey the same meaning as breach. (The two words are closely related.) And for what it’s worth, in MSCD I say that breach is “more sober” than violate. So break the law plus breach the obligation is tempting.
And I assume it would not be a good idea to express this concept in the negative, in the manner described at the top of this post.
What do you think?
While my preference is also for “violate,” because it is somewhat more neutral in feeling than “break,” which carries for me an overtone of doing it deliberately (I continue to avoid “breach” as a verb, which I have long viewed as jargon bordering on solecism unless you’re talking about a whale or porpoise coming up for air).
Where I part ways with you, as I long have done, is in the presumption that there is always going to be a single best way of expressing something. In fact, any of the words you offer here “work” in the sense of avoiding confusion and (save “breach”) avoiding archaism and jargon. As long as the term is used consistently, it doesn’t really matter.
Yeah *grudgingly* but when one way works, it makes life easier to stick with it, even if other ways are effective too.
It’s good to know that even you are struggling with this. I have always felt dissatisfied with the options, and confess to having been inconsistent with my choices over the years. I don’t like ‘break’ or ‘violate’, and haven’t seen these used in English law agreements. To me, these words have criminal offence connotations, extending to sexual crimes when it comes to violate. So they sound overly dramatic.
Although more clumsy in style, expressing the concept as a negative (fail to comply) may just be the better option. But if I had to use a positive verb, then I guess ‘contravene’ would be my choice – but without much enthusiasm.
I will be interested to see what conclusion you reach on this.
I’m glad I’m not the only one wrestling with this!
Is infringing a right the best collocation, or would you go for “breach a righ” as well? Thank you for your views.
I prefer using infringe with ownership interests, primarily intellectual property. But I’ll have to take a closer look at that.
1/ A drafter should usually express things as directly as possible, but directness doesn’t rule out negative phrasing. What ‘positive’ synonym is there for ‘nonentity’?
2/ It’s a virtue to phrase the same idea the same way, if possible, throughout the contract, from contract to contract, and from client to client. I, uh, ‘fail to see’ how the drafting virtue of consistency implies a belief that there’s always a best way to say a thing.
3/ ‘Noncompliance’ and other negative formulations are often politer than positive ones, as Mark Robinson notes. For example, judges often soft-pedal murkiness as ‘not a model of clarity’. Contract drafting isn’t social correspondence, but why use harsh words when softer ones are equally clear?
4/ If we resolve, over my protests, always to express contravention positively, I favor ‘break’ (v.) and ‘breach’ (n.) as the shortest and least Latinate.
5/ Is there any danger in this area of confusing senses of ‘break’, which sometimes means ‘end’, as in break a silence, break resistance, break a logjam, etc. In other words, is ‘break’ a safe bet for ‘violate’ one or more provisions and not ‘terminate’ the whole contract?
I’ve wondered about the noun form. Why not breaking?
I don’t think your point 5 is a concern.
I like ‘breaking’. The possessive singular would be awkward (‘each breaking’s consequences’), but it might seldom arise and in those rare cases could be fixed by (sigh) a prepositional phrase (‘the consequences of each breaking’).
My preferred expression is by Judas Priest.
https://m.youtube.com/watch?v=L397TWLwrUU
Chris
Sadly, I’ve lived a life deprived of this!