“Is/Are Subject To” as an Example of a Passive-Type Policy

Here’s an example of what MSCD calls “passive-type policies”: Interest is payable at a rate of 8% per year.

Here’s part of what MSCD 3.244 has to say about passive-type policies:

Some policies are characterized by adjectives such as exercisable and payable and have a structure that’s analogous to the passive voice. This manual refers to such policies as “passive-type policies.” Passive-type policies have two shortcomings. First, as with passive verb phrases (see 3.11), the agent can be expressed by a by-agent, but in contracts the agent is often omitted (see [8-7] and [8-8]), leaving unstated the party responsible for performing the action.

I’m happy to announce another passive-type-policy structure, use of is/are subject to plus abstract noun. Here are some examples, the first three using change, the remaining three using termination:

The specific goals are determined annually by the Committee and are subject to change by the Committee.

The Executive’s position and assignments are subject to change.

… as detailed in its Associate Handbook, the provisions of which are subject to change on a prospective basis.

This Agreement is subject to termination by mutual agreement at any time.

Such authorization is subject to termination at any time by the Board of Trustees of the Trust for any reason.

The employment of each Employee is subject to termination upon up to thirty (30) days’ prior written notice under the termination notice provisions included in the applicable engagement Contract with such Employee or applicable Law.

In each case, the fix is the same: if something is subject to [abstract noun], that means a party may [verb].

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.