At last week’s seminar in Sydney, one of the participants asked me about the phrase however so described. I told her that I’d look into it; she probably didn’t expect that it would lead me to another way to handle redundancy.
Redundancy has two sources. There’s what I’ll call rhetorical redundancy: when you throw in synonyms or near synonyms just because it makes contract prose seem less drably practical. (See this 2009 post for my discussion of this “ancient English stylistic tradition.”)
But another source of redundancy is concern over whether the label I use to describe something in a contract covers something outside the contract that’s essentially equivalent but to which a different label is applied. I think that concern is at the root of the string of nouns in the following definition, which is from an Australian contract (italics added):
Authorisation includes any consent, authorisation, registration, filing, lodgement, permit, franchise, agreement, notarisation, certificate, permission, licence, approval, direction, declaration, authority or exemption from, by or with any government, semi-governmental or judicial entity or authority …
Presumably, the drafter was worried that if the definition were to refer simply to “any authorization,” a court might hold that something that a government agency called an “exemption” didn’t fall within the scope of the definition.
That brings us back to however so described. You see it in materials with a Commonwealth connection. Here it is in a Swaziland statute:
“equipment” includes any equipment or machinery however so described;
As a condition to using the Service, you agree and understand that BikerHQ may display advertising, however so described, and other information adjacent to and related to its content.
The thing about however so described is that the so seems not to make sense. That’s why you also see however described. Here’s an instance of however described from the Australian Fair Work Act of 2009:
terminate, in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law.
But even however described could be improved. The issue isn’t description, but use of an alternative label, so I’d say however referred to.
Whatever phrasing you use, the aim is to make it clear that the provision in question isn’t to be interpreted pedantically: if a provision refers to “ice cream,” something that’s referred to as “frozen confection” would fall within the scope of the provision. It might be that a court would reach that conclusion anyway, but making it clear in a contract would preclude a disgruntled contract party from using that issue to pick a fight.
To see how this approach would work in practice, here’s an alternative version of the definition at the top of this post (I resisted the temptation to tinker with the string at the end):
Authorisation includes any authorisation (however referred to) from any government, semi-governmental or judicial entity or authority …
I don’t recall having previously seen however referred to or any variant used in a contract. Because I couldn’t search for it on the SEC’s EDGAR system (Lexis doesn’t allow searches that include however), I don’t know how often this approach is used. But I think it’s useful.
It requires the reader to determine whether, for example, “registration” is close enough in meaning to “authorization” to allow the former to fall within the scope of the latter, so there’s scope for uncertainty.
On the other hand, when you inflict on the reader a string of synonyms or near synonyms, you turn contract prose into a thicket the reader has to hack through. It also raises the issue of what happens if it turns out that something potentially relevant is described using a word that’s not included in the litany; the longer your list, the greater the chance that a court will conclude that it was meant to be comprehensive and so doesn’t cover items described using a term that’s not included.
So each approach involves risk. Which approach makes most sense would depend on the context.
So, readers, some questions: Have you seen this approach used in contracts? If so, however often? What do you think of it? I have to come up for a term to describe this approach. Any suggestions?
Finally, my thanks go to the participant in my Sydney seminar who asked me about however so described. It’s inevitable that by engaging constantly with seminar participants, clients, readers, and students, I’ll discover new issues. Add this to the list of topics to be addressed in the fourth edition of A Manual of Style for Contract Drafting.