“Joinder”: I Do Not Think It Means What You Think It Means

1fa82eBehold the following extracts from the outhouse EDGAR, each using the word joinder:

… the Company shall cause each such Permitted Subsidiary to become party to the Guaranty by executing a joinder to the Guaranty reasonably satisfactory in form and substance to the Required Holders.

On November 11, 2016, the Board authorized this Agreement , contingent upon its execution and the execution by IDFC of a joinder to the Second Amended and Restated Stockholder Agreement …

… and the respective First Lien Representative shall have notified the Collateral Agent that such agreement or instrument shall constitute the Credit Agreement (or a portion thereof) and shall have executed and delivered to the Collateral Agent a joinder to the Collateral Agency and Intercreditor Agreement …

The Company shall cause each subsidiary of the Company to promptly become a party hereto (an “Additional Debtor”), by executing and delivering an Additional Debtor joinder substantially in the form of Annex A attached hereto …

So it appears that in bigger, more complex deals, joinder has come to mean “a document by which someone becomes party to an existing contract.”

Excuse me for a moment. *throws up copiously* Ah, that’s better.

Or you can say joinder agreement:

… shall be entitled to become a Holder hereunder by signing a joinder agreement hereto, agreeing to become subject to the terms of this Agreement.

Of course, this use of joinder bears no relation to dictionary definitions of joinder. The definition offered in Black’s Law Dictionary is “The uniting of parties or claims in a single lawsuit.”

Now, there’s no reason not to coin a new meaning for a word if it serves a purpose. But with joinder, you risk losing sight of the fact that it’s a kind of amendment. How about using instead joining amendment?

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.

14 thoughts on ““Joinder”: I Do Not Think It Means What You Think It Means”

  1. It seems to me that the correct term for an agreement by which another person becomes a party to a contract (in addition to rather than in substitution for an existing one) is an “accession agreement.” That’s consistent with the use in treaties. I’ve also used the term “participation agreement” where an affiliate of a contracting party jumps into the pool (typical in large enterprise and franchise-related agreements).

    • Award yourself a gold star! The Black’s Law Dictionary definition of accession is “A method by which a country that is not among a treaty’s original signatories becomes a party to it.” And you can find on EDGAR lending documents that use accession agreement instead of joinder. But it’s an obscure word, so few people would know what the purpose is of an accession agreement.

  2. Ken:

    I think joinder, joinder agreement, or joinder amendment are all perfectly reasonable extensions of a word having well known meaning to a parallel context where it does not create ambiguity or confusion. Why take offense to it? Constant evolution is one of the beauties of English. So long as the evolution does not detract from clarity, I see no reason not to embrace it, especially when it seems that the financial services industry has done so.

    And as further authority, Wikipedia says “Joinder agreements are commonly used in mergers and acquisitions to bind individual shareholders to the terms of an existing merger agreement or shareholder agreement, and in trust practice to bind a donor to the terms and conditions of the trust.” We all know Wikipedia is never wrong. https://en.wikipedia.org/wiki/Joinder

    And the Merriam-Webster online Law Dictionary lists, as its final definition, “a joining into a common transaction.” https://www.merriam-webster.com/dictionary/joinder

    Oliver Wendell Holmes uses the term joinder more broadly still, to refer to the treatment of adverse possession by a person and the person’s heir or legatee as a single time period. http://biotech.law.lsu.edu/Books/Holmes/claw10.htm

    Adding to Vance’s list, I’ve seen “affiliation agreement” used once. That felt loosey-goosey to me, but it’s just a title.


    • OK, I got a little carried away with the snark.

      I’m hardly one to stand in the way of change in the English language. But what we have here is an olde-worlde legal term of art that legalistic transactional types have glommed on to for purposes of expressing a different meaning. What unites the different meanings is the concept of join. So use that word instead.

      • How? “Agreement to join another agreement”? I like “accession” because it does what it says on the tin. If you don’t know what the word means, keep reading; as Chirs says, it’s just a title. “Read on, Macduff, and damned be him who cries ‘I don’t get this stuff!'” (yeah, I know it’s based on a misquotation).

        • A form of the verb join, namely joining, as noted in my post.

          And saying “Read on” doesn’t fix things, because titles are relevant not just for someone reading the contract: titles are also used in other documents to refer to the contract in question.

          Before this exchange I would have wondered what to make of accession agreement, so I assume plenty of others would have too.

  3. Another vote for accession agreement, under which a new party accedes to (that is, can claim the benefit, but subject to burden, of) an existing and continuing contractual arrangement involving other parties.

    • Your first choice is clunky and needs a hyphen between agreement and party. And amendment is the more informative choice, particularly as you’d need to add to this agreement after your second option: agreement … agreement sounds odd.

  4. I just made a big mistake in a letter I wrote to my ex-husband’s company because I did know the correct term for “I am going to sue you as well as my ex because you refuse to withhold and pay the correct child support.” Ok, here it goes, I said ” enjoin you in a lawsuit.” Correct language please? Thank you!


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