“Knowingly”

At my recent “Drafting Clearer Contracts” seminar in San Francisco, a participant asked me what I thought of use of the phrase knowingly, voluntarily, and intentionally in waivers of jury trial, as in the following EDGAR example (I converted it from all caps to spare you having your eyeballs explode):

The borrowers hereby knowingly, voluntarily, intentionally and irrevocably waive all right to a trial by jury with respect to any litigation based on this Note …

For some context, here’s how Black’s Law Dictionary defines knowingly:

In such a manner that the actor engaged in prohibited conduct with the knowledge that the social harm that the law was designed to prevent was practically certain to result; deliberately.

Knowingly is a creature of statute. Here’s a random example of knowingly used in a statute, namely Md. Code Ann., State Gov’t § 7-305:

A person may not knowingly make a false attestation or knowingly provide false information in an application in violation of subsection (a) of this section.

I recommend that you not use knowingly in contracts. We already have available a simpler word that expresses the intended meaning—intentionally. But if you use intentionally, you should, as I say in MSCD 13.762, “specify that the party’s intent pertains to the consequences of its action.” (I’ll go into that in more detail in the fourth edition.) That makes explicit the “social harm” notion expressed in the Black’s definition.

Sometimes knowingly is used in contracts where you’d be better off without any adverb, as you don’t want the party to take the action in question, whether intentionally or unintentionally:

The Employee shall not knowingly disclose or reveal to any unauthorized person any confidential information relating to the Company, its parent, subsidiaries or affiliates, or to any of the businesses operated by them, and the Employee confirms that such information constitutes the exclusive property of the Company.

If a contract provision tracks a statute provision, you don’t have to parrot the statute’s terminology:

No Borrower will, or will permit any Subsidiary to, directly or indirectly, knowingly enter into any Material Contracts with any Blocked Person or any Person listed on the OFAC Lists.

If you really want to track the statute exactly, instead make it an obligation that the party not violate the statute.

Regarding use of voluntarily, that will have to wait until another day.

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.