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
knowinglydisclose 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,
knowinglyenter 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.
It’s a tricky business to make legal relations hinge on mental states, and best to reduce such instances to a minimum.
For instance your example:
‘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’.
Consider the following alternative:
‘The borrowers hereby waive the right to trial by jury in any litigation involving this note’.
The ‘irrevocable’ part is better dealt with in a provision on amendments, but all the mental state adverbs are objectionable not only as surplusage, but also as subversive of every other provision that lacks the hype: ‘When the parties wanted to make a provision knowingly, voluntarily, and intentionally, they clearly knew how to do so: see the jury waiver provision. Surely the parties didn’t mean the same thing where they used those words as where they didn’t’.
That’s my response to the litigation-minded drafter who says, ‘To enforce a jury waiver, we’ll have to prove that the waiver was knowing, voluntary, and intentional. Why not ease the barrister’s burden by having the waiving party *say* that the waiver is knowing, voluntary, and intentional?’
I know the temptation exists to lard a contract with all sorts of words, phrases, and provisions ‘just to be safe’, but giving in sometimes backfires, reducing both elegance and safety.
Yep.
Ken:
When you get to it in the 4th edition, I hope that your recommendation around intention is that intention should usually be stated in a way that shows that the actor must intend both the conduct and the harm. But the language is really problematic. For example, as a carve-back in a limitation of liability:
Yuck. Most lawyers would think that redundant. So maybe something more like this:
or
Not much better.
But then there are more complicated things, like fraud:
Double yuck.
I look forward to your solution. Please show your work.
Chris
My first exposure to the ‘dual intent’ issue was a prosecutorial analysis of a statute against indecent exposure. The defendant had to expose himself (1) intentionally and (2) with the intent to arouse or gratify sexual desire. It was called a ‘dual intent crime’.
The current discussion is about double intentionality in a contract.
in your liability ‘carve-back’ example, I wonder whether specifying the intent to violate applicable law doesn’t do double duty by implication, since it would be hard (impossible?) to intend to violate the law by an unintentional act.
If we grant the need to express each of the two intents, one way might be some appropriate variation on (1) defining action as intentional action, then (2) referring to ‘acting with intent to violate applicable law’. Presto! Yuckiness all gone. You like?
AWB:
You might be right. Now for the challenge: can you extend that to other stated of mind, such as gross negligence and fraud?
Chris
Dear Chris,
I’m terrible at challenges, but my thinking is that ‘gross negligence’ and ‘fraud’ describe a two-part thing: conduct plus state of mind.
I won’t develop that notion, because as a drafting matter, it seems simplest to say something like ‘this limitation of liability does not apply to liability arising from gross negligence or fraud [on the part of X]’.
Someone on this blog called me ‘aw right’; that was fun. ‘Wright’ is fine, since i ‘part my name on the left’.
Cordially,
Wright