“Irrevocably”

Recently the word irrevocably attracted my attention.

It means “unalterably.” And more often than not it’s redundant. That’s because generally when a contract party takes an action, it follows that absent anything in the contract to the contrary, the action can’t be undone.

Consider the following example:

Upon issuance of a Letter of Credit, each Lender will be deemed to have irrevocably and unconditionally purchased from Issuing Bank, without recourse or warranty, an undivided Pro Rata interest and participation in all LC Obligations relating to the Letter of Credit.

It makes no sense to say that a party has irrevocably purchased something: once you purchase something, it stays purchased, unless you’ve established procedures for return.

Here’s another example:

Each Borrower hereby irrevocably releases and forever discharges the Agent, the Lenders and their respective Affiliates ….

Once you release something, it’s gone, without any way for you to claw it back. So having a party irrevocably release something does nothing other than add a surplus and potentially confusing word to what would otherwise be clear language.

And a third example:

The Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds ….

As in the second example, if a party waives a right, as opposed to, say, waiving isolated breach of an obligation, it couldn’t reasonably argue that it should somehow be able to get that right back. (Am. Jur. Estoppel § 200 says “It is well settled that a waiver once made is irrevocable, even in the absence of consideration, or of any change in position of the party in whose favor the waiver operates.”) So adding irrevocably would serve no purpose. But more to the point, I suggest that instead of having a party waive a right it would be preferable to use language of prohibition, more specifically is not entitled to; see MSCD 1.53–54. That would result in the above example saying instead “The Borrower will not be entitled to direct the application of any payments or Collateral proceeds ….”

But it makes sense to use irrevocably with the verb appoint, as in this example:

Holdings and each Borrower irrevocably appoints Agent as its attorney-in-fact to collect such balances to the extent any such delivery is not so made.

That’s because generally the power to appoint someone to a position includes the power to remove them, too. If you don’t want that to be the case, you should say so, and irrevocably seems as good a way as any to accomplish that.

Let’s end with another inappropriate use of irrevocably:

Each Holder hereby irrevocably agrees to submit for exchange, all Notes owned by such Holder, in the principal amount set forth on such Holder’s signature page hereto ….

Agrees to is an inferior alternative to shall for expressing obligations (see MSCD 2.58), so irrevocably agrees to in effect suggests that a party can at will back out of contract obligations. That’s a desperately wrongheaded notion.

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.