Thanks to a hot tip from Deep Throat Glenn West, I learned about the Fifth Circuit’s opinion from earlier this year in Landmark American Insurance Co. V. Lonergan Law Firm, PLLC (here).
An insurance company claimed that appellant Lonergan, a lawyer subject to a malpractice claim, had failed to “report” the claim as she was obligated to under her insurance policy. Lonergan’s clients argued that Lonergan had in fact reported the claim during the policy period as part of her application to renew her insurance policy. The insurance company countered that the “Notice of Claim” provision in its policy obligated Lonergan to “Please send all claim information to: Attention: Claims Dept. [address].”
The court’s conclusion: “But Landmark’s policy is distinguishable from these cases, because the ‘where’ clause is defined in precatory (‘please’), not mandatory (‘shall’) terms.” It reversed the lower court’s ruling in favor of the insurance company.
So generally, leave please out of contracts, along with other namby-pamby stuff like you are kindly requested to.
When please is used in connection with formalities required to form a contract, it’s hard to imagine please causing problems (although I’m not recommending it). Here’s an example:
Please deliver the signed subscription agreement along with a check payable to Sandy Springs Holdings, Inc. in the amount of $100 to the following address:
But otherwise, stay away from please. Express the intended meaning as language of obligation or prohibition or as a condition, whichever is relevant, instead of swaddling it in misplaced courtesy.
(New to my “categories of contract language” framework? Go here for an introduction.)
Please and other pleasantries (s’il vous plait, etc.) are ill advised. Find your ice-cold inner contracts drafter instead.
The reason precatory language is out of place in a contract is not that it’s pleasant or namby-pamby, it’s that it doesn’t do any of the things contract language is supposed to do, such as constitute a party’s undertaking a duty.
Also, I don’t understand the exception when ‘please is used in connection with formalities required to form a contract’. Is such language part of the contract or not part of the contract? If not, who cares? If it is the part of the contract that describes the point at which the contract takes effect, wouldn’t it be better to use something along the following lines?
‘This agreement takes effect when Sandy Springs Holdings, Inc. (‘Sandy’) receives the signed subscription agreement, together with a check for $100 payable to Sandy, at [address], not later than [time and date].
I made some tweaks to make it clear I wasn’t suggesting anything other than what you’re concerned about.