“In Furtherance of the Foregoing”

Remember without limiting the generality of the foregoing? (See MSCD 13.763–70 and this 2006 post.)  Well, allow me to introduce you to its equally evil twin, in furtherance of the foregoing.

They serve the same function, to the extent they can be said to perform any function. In fact, they’re sometimes conjoined: in furtherance of the foregoing and not in limitation thereof. Ay caramba!

Just as there’s always a better alternative to without limiting the generality of the foregoing, there’s always a better alternative to in furtherance of the foregoing. But what that is depends on the context. Simply deleting it might be the best fix. Or some creativity might be in order.

Below are four examples from EDGAR featuring in furtherance of the foregoing. In the first two, I’d delete in furtherance of the foregoing. As for the two that follow, in furtherance of the foregoing is the least of their problems—they need a complete rewrite.

The Parties acknowledge that the indemnification provisions hereof do not relieve any insurer who would otherwise be obligated to pay any claim to pay such claim. In furtherance of the foregoing, the Indemnitee shall use commercially reasonable efforts to seek to collect or recover any Insurance Proceeds and any Third Party Proceeds … to which the Indemnitee is entitled in connection with any Loss for which the Indemnitee seeks indemnification pursuant to this Section 7 …

The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):

In order to facilitate planning for the integration of the operations of the Partnership Business and the Argon Business and to permit the coordination of their related operations on a timely basis from and after the Closing, and in an effort to accelerate to the earliest time possible after the Closing the realization of the benefits expected to be realized as a result of the transactions contemplated hereby, Blackstone and the Founder, in addition to the matters set forth in Section 6.3(b), shall consult on strategic and operational matters relating to the integration of the Partnership Business and the Argon Business, including with respect to matters attendant to Argon HoldCo being a publicly traded corporation following the Closing, in all cases only to the extent such consultation is not in violation of Applicable Law. In furtherance of the foregoing, between the date of this Agreement and the Closing Date, (i) Blackstone shall, subject to applicable confidentiality and regulatory restrictions, inform the Founder prior to the financial and strategic advisory businesses of BAP entering into a new executory engagement letter or any other similar or related type of agreement that would constitute part of the Argon Business, and (ii) the Founder and Blackstone will consult with each other periodically or otherwise establish appropriate procedures to assess, in a manner that comports with Applicable Law and any applicable confidentiality obligations of the parties, whether any actual or potential conflicts of interest could arise from entering into new client engagements, and in the event such an actual or potential conflict is identified, the Founder and Blackstone shall use their respective reasonable best efforts to prepare an integration plan to resolve such actual or potential conflict.

Except for the representations and warranties contained in Article IV, Parent and Merger Sub acknowledge and agree to the Company’s express disavowal and disclaimer of any other representations and warranties, whether made by the Company or any other Person on behalf of the Company, and of all liability and responsibility for any representation, warranty, projections, forecasts or other material made available to Parent or Merger Sub, including any opinion, information, projection, forecast or other information that may have been or may be provided to Parent or Merger Sub by any director, officer, employee, agent, consultant or other Representative of the Company or any of its Affiliates. In furtherance of the foregoing, and not in limitation thereof, Parent and Merger Sub specifically acknowledge and agree that none of the Company or any of its Subsidiaries or Affiliates makes or has made any representation or warranty, express or implied, with respect to any financial projection or forecast delivered to Parent or Merger Sub with respect to the performance of the Company or any of the Company’s Subsidiaries either before or after the Closing Date.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

8 thoughts on ““In Furtherance of the Foregoing””

  1. Ken:

    This phrase seems to serve the same function as “therefore” and its relatives [see https://www.adamsdrafting.com/therefore/) and, if you reversed the order, “because” [see https://www.adamsdrafting.com/words-that-dont-belong-in-a-contract/%5D.

    I’m still not entirely sold on there being no need for transitional words to connect an acknowledgment and an immediately following obligation that somehow enforces the consequences of the facts acknowledges (whoch appears to be the case only in your first example). But “in furtherance of the foregoing” would have to be one of the least elegant ways to say “therefore.”


      • Ken:

        I don’t see that the phrase means “including” in the first example; I think it’s more int he line of “because of what I just said” — i.e. “therefore.” I think the right fix to the second is simply removing the phrase entirely, as you suggested in your initial post. I agree with you that the last two are probably in the nature of “including.” They might have been better addressed by a well-crated set of tabulated enumerated clauses.


  2. A couple of comments:

    1/ I can’t see how ‘in furtherance of the foregoing’ *ever* means ‘including’. One certainly cannot substitute ‘including’ for the longer phrase with sensible results in any of the examples from the Great Manure Lagoon.

    2/ I agree with Chris Lemens that ‘in furtherance of the foregoing’ means something like ‘therefore’, but I read the ‘furtherance’ phrase as something narrower, like ‘to carry out [or ‘implement’] the foregoing’. Under that reading, I object weakly that it’s narrative: why should a contract explain why it is imposing a duty?

      • Chris — Good point, but take it up with Ken, who said in MSCD3 2.127: ‘The recitals serve a storytelling function. They’re the one part of the contract that calls for simple narrative prose.’ –Wright

        • AWB:

          You are going to negotiate with me. You have two sentences. One is an acknowledgment of your facts — let’s say it’s a statement that you have insufficient knowledge to make some decision that I must make in the course of consuming your services. The second is an obligation arising out of those facts — let’s say an indemnity against third party claims arising out of your decision, or failure to make one, or out of any assertion that I made the decision for you.

          Now, you have negotiated with me before, and you know I’m dim. I read your clearly drafted language and I often just don’t get it. Are you going to connect these two sentences for your dim reader? If so, how?

          (By the way, I genuinely don’t know the best answer to this one. But I’m leaning towards a simple “therefore” — which is nonetheless narrative in nature.)


          • Chris– For the sake of concreteness, take this hypothetical:

            Acme acknowledges that the lubricant in the Widgets may cause an allergic reaction in some users. [To induce Widgetco to sell Acme the Widgets anyway] OR [In furtherance of the foregoing] OR [Therefore] OR [nothing at all] Acme will indemnify Widgetco from all liabilities and losses arising from claims by any Acme Entity or nonparty related to the lubricant in one or more Widgets that Widgetco supplies to Acme under this agreement. (End of hypothetical.)

            Being an (inconsistent) minimalist, I would probably use the ‘no connector at all’ approach.

            In fact, I would omit even the acknowledgment, if its only purpose were to tell the story of why the indemnity was being included. But the acknowledgment seems to have the additional purpose of blocking Acme from ever claiming ignorance of the allergenic lubricant, so in it stays. -Wright

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.