Is absence of knowledge the same thing as knowledge of absence?
Consider the following EDGARlicious example, followed by my variation:
… the Company is unaware of any facts that would form a reasonable basis for any such claim.
… to the Company’s knowledge, no facts exist that would form a reasonable basis for any such claim.
And these alternatives:
… Borrower is unaware of any claims or adjustments proposed for any of Borrower’s prior tax years that could result in additional taxes becoming due and payable by Borrower.
… to Borrower’s knowledge, no claims or adjustments have been proposed for any of Borrower’s prior tax years that could result in additional taxes becoming due and payable by Borrower.
I suggest that each element of both pairs conveys the same meaning as the other element. That being the case, economy favors using knowledge whether you’re referring to presence or absence of knowledge, instead of using knowledge for the former and unaware for the latter. But I could be convinced otherwise.
(Regarding knowledge, see MSCD 13.364–75. I haven’t addressed it in a blog post.)
4 thoughts on ““Is Unaware Of””
Since there doesn’t seem to be any ambiguity in either formulation, it might just as well be left to taste. That said, use of “knowledge” provides, I think, a better opening to specify how the knowledge or lack of knowledge was acquired: through “due” inquiry (a hand-waving term that might do for minor points) or through specified means of inquiry where it’s relatively important.
Good point. MSCD goes into those nuances.
In each case, the latter formulation (“to the Company’s knowledge”) could be argued to mean, in effect: The Company represents that it has sufficient knowledge of such matters, and here’s how it is: ….
That’s why, in representing the Company I prefer the former approach, which I often phrase as, “So far as the Company is aware, without having made any particular investigation, …” The trailing phrase is intended as a prophylactic against trial counsel arguing there was an implicit representation of due diligence.
And of course there’s the issue of whether the drafter should define just what “the Company” means, given that only specific humans can “know” or be “aware” of anything.
Sometimes the best phrasing arises from in-contract or otherwise applicable definitions, like this one from an ethical rules context: ‘”Knowingly”, “known”, or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.’
Against such a background, ‘is unaware of’ would seem clumsy at best, evasive at worst.
I know the examples illustrate only the point under discussion, but isn’t the second pair alarmingly verbose for ‘to Borrower’s knowledge, the Borrower has paid all its taxes’?