A chapter of MSCD is devoted to syntactic ambiguity, in other words uncertainty over which part of a sentence a given word or phrase modifies. One source of syntactic ambiguity is closing modifiers. MSCD discusses how to avoid ambiguity caused by closing modifiers, but it doesn’t discuss in each case (or the wordier in each such case). That’s what I’ll do now.
Consider the following sentence from a make-believe contract:
Acme shall serve each guest chocolate mousse, peach cobbler, or apple pie, with whipped cream.
It’s not entirely clear whether the idea is that guests choosing chocolate mousse or peach cobbler are to be served whipped cream. If that’s the intention, a simple way to make that clearer would be by using in each case:
Acme shall serve each guest brownies, peach cobbler, or apple pie, in each case with whipped cream.
That’s straightforward enough. But the funny thing about in each case is that more often than not it’s redundant or represents an inferior fix. Consider the following examples culled from the U.S. Securities and Exchange Commission’s EDGAR system (I’ve noted my fixes):
Cause for Executive’s termination will exist at any time after the happening of one or more of the following events,
in each caseas determined in good faith by the Company’s board of directors:To Sellers Knowledge, there are no defects or liabilities affecting any of the Tangible Personal Property that might detract from the value of the property or assets, interfere with any present use of any of the property or assets, or affect the marketability of the property or assets,
in each case,other than those that will not have a Material Adverse Effect on the Business.
The[read To the extent necessary for the conduct of the Business, the] plants, buildings, and structures included in the Real Property currently have access to (a) public roads or valid easements over private streets or private property for ingress to and egress from the Real Property, and (b) water supply, storm and sanitary sewer facilities, telephone, gas and electrical connections, fire protection, drainage, and other public utilities, in each case to the extent necessary for the conduct of the Business.(e) do not require the consent or approval of any Governmental Authority or any other Person, other than those which have been duly obtained, made or complied with and which are in full force and effect and except
, in each case,to the extent any contravention, default, Lien or failure to obtain any such approval or consent could not reasonably be expected to result in a Material Adverse Effect.The Company has good and marketable title to all properties and assets owned by it,
in each casefree from Liens and defects, other than Permitted Liens.
In fact, in the course of browsing through some 30 contracts using in each case, I failed to find one that used in each case efficiently to avoid ambiguity.
In your second example, isn’t the inclusion of “in each case” substantive? This way the MAE will count individually (a higher hurdle to breach) rather than collectively.
Guru: You’re raising the issue of “individually or in the aggregate.” It’s a legitimate issue, but in each case sure isn’t a clear way to address it. Ken
Ken,
In the first example of the culled wording, it appears to me that striking the “in each case” adds ambiguity in that it is unclear if the Board is determining the occurrence of one or more relevant events or that the Board is determining that “cause for Executive’s termination” exists, or both of the above.
My reading is that if “in each case” is retained, it is clear that the Board is determining the occurrence of the relevant event, after which “cause for Executive’s termination” is automatically triggered. I understand that the cited examples are excerpts and thus there may be wording in other parts of the relevant document affecting the triggering of “cause for Executive’s termination.”
I have been awaiting your examination of “in each case.” Thank you.
Kind regards,
M.: I don’t think your analysis works. Cause automatically follows from occurrence of an event, so I don’t see any ambiguity. And even if there were any, I don’t see how in each case could cure it. Ken