In this recent post, I considered as stated in as an alternative to in accordance with and found it wanting. But in this comment, A. Wright Burke proposed that under “is the better choice.” So he has thrown down the gauntlet; I accept the challenge, at the risk of having to run the gantlet.
Below are eight instances of in accordance with that I culled at random from the great compost heap that is the SEC’s EDGAR system. Readers, what do you think of replacing in accordance with with under in each of these examples? Does it work in all? Some? None? I’ll wade in after you’ve had your say. Bear in mind two things noted by Wright in his comment: These examples could do with being given a good scrubbing, but that’s not the point of this exercise. And saying which you prefer won’t advance the cause much unless you’re able to explain why.
- “Alternative Currency” means each of Sterling, Canadian Dollars, Euro, Australian Dollars and each other currency (other than Dollars) that is approved in accordance with Section 1.06.
- … as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
- … the capitalized amount thereof that would appear as indebtedness on a balance sheet of such Person prepared as of such date in accordance with GAAP.
- “Bid Solicitation Agent” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i).
- At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.
- The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
- … all obligations of the Seller under the terms and conditions of the Permits listed in Schedule 1.01(a)(x) to be assigned to the Purchaser in accordance with Section 1.01(a), to the extent that such obligations relate to and are required to be performed during periods after the Closing; …
- The parties agree that the Final Purchase Price (adjusted to reflect the “purchase price” for U.S. federal, state and local tax purposes) shall be allocated among the Assets in accordance with an allocation prepared in compliance with Section 1060 of the Code and the Treasury regulations promulgated thereunder (the “Allocation”).
Incidentally, note use of in compliance with in the last example. A unnecessary variant, methinks.
11 thoughts on “Barbed-Wire Steel-Cage Match: “In Accordance With” Versus “Under””
This might be a cop-out, but I don’t think the answer necessarily has to be either “under” or “in accordance with”. In some of these examples, there are better choices.
My preferences are:
2. in accordance with
3. using / applying
4. I’d insert “under section 14” after “appointed by the
Company” and end the sentence after “Notes”.
5. complying with. But I would prefer the sentence to end, “and the Trustee shall comply with such Company Order and authenticate…without any further action required of the Company”
6. If we use “in accordance with”, the sentence sounds permissive for the Company, which I believe is the intent. However if we use “under”, I think it sounds almost like it’s stating a possible scenario (“The Company might appoint one or more co-Note Registrars under Section 4.02). Assuming it’s intended to be permissive, my choice would depend on what was in 4.02. If it contained qualifications for the co-Note Registrar, I’d be fine with “in accordance with”. If it contained the method for appointment, I would prefer “in the manner set out in”. If it contained more than just the method for appointment, I’d go with “in accordance with”.
8. in accordance with
Thank you! I’ll digest this soon.
A few comments:
1/ Limiting the choices to ‘in accordance with’ and ‘under’ is fair, but omits other choices that might sometimes (often? usually?) be better than either, like recasting out of prepositional phrase mode altogether, as Sterling points out with ‘using/applying’ and ‘complying with’.
2/ As usual, examples from EDGAR’s ‘great manure lagoon’ cry out for overall revision, but the present exercise requires something narrower: choose one of two options.
3/ Is anything of value lost if drafters use ‘in accord with’ instead of ‘in accordance with’?
4/ No fair saying what one prefers without giving reasons. This is a cage fight, not a poll.
5/ Under the brevity rule (‘use the shortest way that does the job’) brevity trumps perfection, so ‘under’ would win out over preciser formulations (eg, ‘in the manner set forth in’), as long as ‘under’ does the job.
‘Doing the job’ implies leaving no *practical* uncertainty.
In a contract, I’d use ‘brevity is wit’s soul’ over ‘brevity is the soul of wit’, since meter seldom matters to a drafter.
6/ Under the brevity rule, I’d use ‘under’ in all 8 examples. ‘Never let the perfect be the enemy of the good.’
7/ Remember that a style guide aims to recommend for uniform use the best way to reach a drafting goal. Five different choices in 8 examples seems to stray from that goal, at least where a single choice would *do the job* in all 8.
I’ll devote more thought to this anon, but meanwhile I’ve updated my post by mentioning before the examples two of the points you make.
I updated my post with reasoning.
Nice job. I’m pondering your proposed distinction between simple cross-references (where ‘under’ will do) and references to rules and procedures (where ‘in accordance with’ or another approach is called for). Not sure I agree but I ponder. What’s your opinion about saving four letters by saying ‘in accord with’ and not ‘in accordance with’?
Thanks! If I saw ‘in accord with’ used in a contract, I wouldn’t have any real beef with it. However, I think it is grammatically incorrect.
‘In accordance with’ is synonymous with ‘in compliance with’ and maybe to a lesser extent, ‘in agreement with’. You would never write ‘in comply with’ or ‘in agree with’. So I think that rule would extend to accordance and you wouldn’t write ‘in accord with’. But you could write ‘to accord with’.
And jumping onto that tangent…I’m not sure that ‘to accord with’ would be specific enough. Take #6 as an example:
“The Company may appoint one or more co-Note Registrars to accord with Section 4.02.”
This usage makes me want to ask, “what else can the Company do to accord with Section 4.02?” I don’t think that leads to a drafting problem, it just means that a reader could be searching through the contract unnecessarily to find out what else the Company can do to accord with Section 4.02. I don’t know…I’m waffling a little bit on my reasoning for ‘to accord with’, so could probably be convinced otherwise.
As to the grammaticality of ‘in accord with’, the Collins English Dictionary entry for ‘accord’ begins:
agreement; conformity; accordance (esp in the phrase in accord with)
For 1, 4, 6, and (I think) 7, I would use “under” because they are references to another section of the same agreement. I don’t think my answer would be different based on it being a different agreement, so long as it was still effectively a cross reference. But I might change my mind on seeing an example.
For 2, 3, and 8, I see these as reference to an external standard. The argument for “in accordance with” seems stronger because doing the whatever in a manner that complies with the external standard is the point of each provision. It’s not “just” a cross-reference. But I don;t really see a fundamental difference, so I’d probably still prefer “under.”
For 5, I see this as reference to directions of one of the parties to the other. Under seems inadequate, but I think the reason is that I’m unsure what it was meant to do. If I were to re-write it and believed that there would be additional terms in the Company Order, I would use language of obligation: “In authenticating and delivering the Notes, the the Trustee shall comply with the Company Order.” If there are never additional terms in the Company Order, then I’d remove the existing reference to it or use “under.”
I don’t really like either to be honest. Both sound stuffy and legalistic to me. That said, I don’t think there’s a universal substitute that’s ideal for every example given. Here’s how I’d revise each of them.
1. I’d use just “in.” (“that is approved in Section 1.06”)
2. I’d use “consistent with.” (“consistent with normal banking procedures”)
3. I’d use “consistent with” again. (“consistent with GAAP”)
4. I’d use “as described in.” (“as described in Section 14.01(b)(i)”)
5. I’ll skip because I think “in accordance with” is the least of this sentence’s problems.
6. I’d use “as described in” again. (“as described in Section 4.02”)
7. I’d use “as described in” yet again. (“as described in Section 1.01(a)”)
8. I’d use “according to.” (“according to an allocation prepared in compliance with Section 1060”)
Are these necessarily more elegant? No, probably not. But I think they get the same point across and are closer to plain English.
Dark horse: “per”. Shorter than both “under” and “in accordance with”. Neither sleep inducing nor figurative. Thousands of hits on EDGAR.
Bonus points: Latin via Old French. Impeccably orthodox!