Today @solirvine tweeted this in my direction:
Related: in your extensive corpus, have you ever addressed the dynamic of “it's meaningless/unimportant, so just leave it in” versus “it's meaningless/unimportant, so let's take it out”?
That’s a conversation I have at least once per transaction.
— Sol Irvine (@solirvine) January 22, 2020
Absent other considerations, you take out that which is meaningless, for two reasons.
First, if a contract contains enough that is meaningless, the meaningless element will add a meaningful number of useless words and waste a meaningful amount of time.
And second, it’s amazing how that which is meaningless can unexpectedly be given meaning, perhaps as a result of the widespread delusion that one must attribute meaning to every word in a contract.
Two examples of the latter phenomenon come to mind. There’s this 2015 post about a court that managed to attribute meaning to the meaningless “throat-clearing” that is agrees that. And there’s this 2014 post about how a court attributed significance to use of may to mean might in a restrictive relative clause—a classic instance of redundancy.
So eliminating that which is meaningless can spare you a whole bunch of trouble.
I refer above to “other considerations.” The only such considerations I can think of is when the other party is represented by a drone who has no authority to change anything in their sacred template. In that context, you might have to live with that which is meaningless.
But my days of doing deals are a distant memory. I welcome your thoughts.
Handling the “it’s meaningless” issue is easier when I set expectations up front that we’re going to eliminate redundancy, incomprehensibility, and other cruft from our contracts. It’s also much easier when you’re dealing with your own contracts and nearly impossible when dealing with someone else’s, so I don’t push with other people’s contracts unless I think there’s a meaningful risk from someone incorrectly attributing some important meaning to a provision.
The road to hell is paved with souls who thought a word was meaningless, only to have a court disagree.
Somewhere you have revealed the technique of using definitions or interpretive rules to neutralise bad text that for one or another reason can’t be changed. (Represents and warrants?) Maybe that trick will find use in this context. -Wright
Color me cynical, but when I find verbiage that its drafter/proponent says is meaningless, therefore leave it in, I assume that it’s not meaningless at all but something the drafter/proponent wants to use as a weapon later on. So out it comes if at all possible. If not, then I demand a coherent explanation and fight over the explanation.
As the Gipper would have said, “trust but verify.”
I tend to share your cynicism and your desire to eliminate tricks for later. But my experience in the SaaS/software industries leaves me without much hope that the team on the other side will have any idea why a given clause is in the contract, much less that they were around when the contract was written. So when push comes to shove, the other side’s contract rarely suffers much from my pencil.
Thankfully, I live in a world where I’m almost always in control of the contract, having drafted it and advised the business about how to implement it, so I don’t have to face the problem often.
I envisioned the situation differently: side B gets side A’s draft, and a junior on side B tells her senior that certain verbiage seems meaningless, and the senior says, ‘It *is* meaningless, so just leave it in’. Implied: why spend negotiation capital fighting over nothing?
I find implausible the scenario in which side B asks side A, ‘What does this provision you propose mean?’ and side A replies, ‘Nothing. It’s meaningless. We proposed it for no reason’ (or words that amount to that). Such a response seems wide open to the reply, ‘If you agree that it’s meaningless, then surely you have no objection to excising it?’ –Wright