“Is Silent On”

[Updated 13 June 2017: Prompted by this more recent post, I’ve had a change of heart. I think this should be language of declaration: The parties acknowledge that this agreement does not address the law that governs disputes arising out of this agreement or the subject matter of this agreement. Why? Because it doesn’t really make sense to state as a ground rule of the contract that which the contract doesn’t cover. But perhaps I’m being pedantic. And in any event, there’s no possibility of confusion.]

I’m not keen on using is silent on (and its variants) in contracts to mean does not address. Here are some examples:

The Ground Lease is silent on whether Borrower can deliver insurance proceeds to a lender.

On any matter upon which this Agreement is silent, the DLLCA shall control.

… and to the extent an Award Agreement is silent on terms necessary for compliance, such terms are hereby incorporated by reference into the Award Agreement.

And here’s another example that’s of greater interest.

The Parties agree to remain silent in regard to Governing Law.

First, there’s the question of whether that’s the best way to express the intended meaning. I’d say instead something along the following lines: This agreement does not address the law that governs disputes arising out of this agreement or the subject matter of this agreement.

Beyond that, what do you think of making this sort of provision part of a deal?

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.