Table 2 in MSDC chapter 3 displays an assortment of suboptimal ways to impose an obligation on a contract party that’s the subject of a sentence. I use shall, of course (as I explain in this article); the suboptimal variants include agrees to, undertakes to, and commits to.
Well, I’m happy to announce that I’ve discovered another suboptimal variant, is bound to (and will be bound to, if the context involves the future). Boy, what a turkey. Here are some examples from the Great Pacific Garbage Patch that is EDGAR (emphasis added):
The Lessee is bound to [read shall] act in such a way as not to disturb the normal enjoyment of the other tenants.
In this regard, Borrower is bound to the payment of [read shall pay] all Indebtedness whether now existing or hereafter accruing, as fully as if such Indebtedness were directly owing to Agent by Borrower.
The Company will be bound to [read shall] redeem the Notes on the date fixed for redemption.
But wait, there’s more! You also see is not bound to used as an unnecessary alternative to is not required to to convey absence of obligation (see MSCD 3.213):
The Secured Party is not bound to [read is not required to] exercise any right or remedy …
No Finance Party is not bound to [read is not required to] monitor or verify the application of any amount borrowed pursuant to this Agreement.
You also see is bound to used to refer to a requirement imposed by some other document, or absence of such a requirement. To avoid unnecessary variation, I would use is required to here too:
The Executive further acknowledges that he is bound to [read is required to] abide by all policies and procedures established by the Company, from time to time, including …
… there are no Contracts by which any RBF Subsidiary is bound to [read is required to] issue additional shares of its capital stock …
Well, you knew that was bound to happen some day.
I am bound / Upon a wheel of fire, / that mine own tears / Do scald like molten lead
Boy, that’s some onerous contract!
Vance’s and Mark’s posts are so good that I’m shy about singing my little song, but here goes: agreed that ‘is bound/not bound to’ is a turkey. Disagree that ‘is not required to’ is the best way to express lack of duty.
‘Need not’ is better (your anathema on it in MSCD3 is unpersuasive); ‘has no duty to’ is better; and ‘is not obliged to’ is better (you say it’s ‘British’ and ‘too conversational’ for ‘American ears’, but I don’t see the former as a problem and you may misjudge the tolerance of American contract-reading ears).
The hidden problem with all ‘absence of duty’ formulations is the absent by-agent — who or what imposes no duty?
To be concrete, suppose the issue is whether management will penalize its lorry drivers for exceeding posted speed limits, and the answer is ‘no’.
Any substantially passive formulation like ‘the drivers are not required to observe any posted speed limit’ cannot relieve the drivers of the duty to obey speed limits set by extracontractual law.
Clarity requires a by-agent, along the following anthropomorphic lines:
‘This agreement imposes neither a duty to observe, nor a penalty for not observing, posted speed limits. Nothing in this agreement relieves any driver of any duty or penalty related to driving speed that any extracontractual authority imposes’.
Ken:
I concur with “need not.” I use it regularly and it works well in almost all situations where “is not required to” would work. That is, it would take the same amount of re-writing to use “is not required to.”
Chris