I regret to report the sudden and unexpected demise of one of the categories of contract language, namely language of belief.
Well, I don’t really regret it. In fact, I’m relieved. Language of belief was a scrawny, frail creature who stood around not doing much of anything other than picking its nose, gazing into space, and getting in the way of the other categories. And the name was unfortunate—it suggested some sort of faith-based drafting initiative.
It happened in Vancouver on 27 April, during my “advanced” seminar for Osgoode Professional Development on the categories of contract language. I think of it as a mercy killing. The person responsible was Gillian Muirhead, of the law firm Lawson Lundell. It was quick and clinical.
By way of background, MSCD devotes a grand total of three paragraphs to language of belief. Here they are:
It doesn’t make sense to state categorically in a contract the legal implications of facts as they exist on the date of the agreement. Instead, it would be up to a court to decide what those implications are—the best a party could do is give its opinion. In such contexts, it’s preferable to use language of belief, as in [14-1], rather than language of policy, as in [14-1a].
But it’s routine for drafters to present legal opinions as statements of fact. Examples include statements regarding topics also covered by standard legal opinions delivered at closing—formation, existence, enforceability of obligations, no violations of law, and other matters.
Instead of asserting facts within the knowledge of the party making the statement, such statements serve to allocate risk. Although in many cases it would go against long-established convention, it would be clearer, but not necessarily more convenient, to use instead language of belief, supplemented by provisions addressing indemnification, termination fees, or some other risk-allocation mechanism.
Here’s example [14-1]: The parties believe that this agreement complies with the requirements of section 409A of the IRS Code.
And here’s example [14-1a]: This agreement complies with the requirements of section 409A of the IRS Code.
Besides the MSCD treatment, language of belief featured just twice on the blog, here and here.
What Gillian said fatally undermined this puny edifice. It was along the following lines: “Language of belief doesn’t accomplish much. If whatever language of belief addresses doesn’t comply with law, using instead a statement of fact (saying that whatever it is complies with law) would offer a remedy and would allow the other party to elect not to close the deal. By contrast, language of belief gives the other side nothing, unless you can establish that the party in question didn’t in fact believe that whatever it is complied with law—an unlikely notion. So in the absence of a statement of fact, you should make compliance a condition to closing. And you can make noncompliance a basis for indemnification. Who cares about language of belief.”
With language of belief cut down to size in that manner, the other shoe dropped: I realized that language of belief is really just another statement of fact, except that example [14-1] doesn’t make sense, in that parties to a contract wouldn’t make joint statements of fact—it should simply read Acme believes that. (Presumably you could say The parties believe in a set of recitals, if you have the urge.) You would preface it in some manner with Acme states, the MSCD verb for introducing statements of fact.
After all, Acme believes that is analogous to using a knowledge qualifier in a statement of fact, and I’m not inclined to add “language of knowledge” to the categories of contract language.
Does it make sense to say Acme believes? Well, conceivably it would allow Acme to limit its exposure while giving the other side some comfort. But I couldn’t say how often it’s used, and I’m not inclined to start looking into it.
My creating language of belief was a mistake without consequence. Yes, it exists, but it’s not a separate category. Instead, it’s a way to phrase statements of fact, one of uncertain relevance. That makes it a feature of language of declaration, which is the category into which statements of fact fall.
So good-bye and good riddance to language of belief. I’m not fond of getting stuff wrong. And I’m not fond of looking a bit dopey in front of seminar participants. But a lot of my ideas are novel. With the help of my readers and seminar participants, I test my ideas, making such adjustments as are necessary. Every so often, I throw something on the scrapheap. Language of belief is just the most recent example. It lasted as long as it did because it’s a backwater of my own making.
My thanks to Gillian. Getting the chance to bat ideas around with smart seminar participants like her helps me do better work.
5 thoughts on “Language of Belief RIP”
Will you also be reviewing language of intention?
Show any sign of weakness and the sharks come circling! ;-)
Regarding language of intention, the first question is whether it makes sense to use it in that consultant-as-independent-contractor example. I maintain that it does.
The next question is whether it makes sense to treat it as a separate category of contract language. I think it does, but in the coming months I’ll revisit that, along with a bunch of other stuff.
I was thinking more about both language of intent and language of belief. There’s a situation similar to the consultant-as-independent-contractor scenario. It is where the parties are using the contract to speak to a third party (i.e. not to allocate risks between themselves), but about a matter of fact that is not known or is doubtful (i.e. not about a matter of legal characterization of fact). For example, “the parties believe that the Property is free of pollution as defined in the Pollution is Gross Act” or “the parties believe that the property does not lie across any oil deposits.” One area of uncertainty could about future facts, such as “the parties believe that attendance at the event will not exceed 1,000 people.” The parties then might rely on that belief to do things in the agreement that would be unjustifiable (maybe even grossly negligent) if done in the absence of that belief.
Gillian’s point focuses on the effect between the parties. And she seems right about that. Standard language of declaration would be better if the drafter’s intent is to create a remedy between the parties. But I always took the example in 14-1 to be a statement that the parties are making to the IRS or the jury, to try to bolster their case that they were not intentionally violating the IRS Code.
Turning away from what the scenario is, I’m really unsure how to map it to a kind of language. On the one hand, their belief about the fact is itself a fact, so one could use language of declaration. But we usually use “states” (or “represents”) for a party’s own facts and “acknowledges” for the other party’s facts; and who is speaking with respect to those words allocates risk among the parties. These are both parties’ facts, and there is no intention to allocate risk between the parties. So that seems like as uncomfortable a fit as if we lost language of intent and instead said “the parties state that their intent is that the consultant is an independent contractor, not an employee.” It seems like tacking on words to make it conform to a category of language. And, if we are truly going to conform to that category of language, wouldn’t it be better to state the fact directly, such as “the parties state that the consultant is an independent contractor, not an employee”? That seems to invite a reading of it as risk allocation, where “intend” and “believe” don’t seem to. (I don’t see a lot of difference when we apply to concept to an uncertain fact, as opposed to an uncertain application of law to fact.)
It almost seems to me that there are four kinds of language that are loosely aligned:
– “States” affirms a party’s own facts to the other party or parties.
– “Acknowledges” confirms the other party’s facts to the other party or parties.
– “Intend” tells a third party what at least two of the parties want to be the result of the application of law to facts.
– “Believe” tells a third party what at least two of the parties think the facts are.
The first two are language of declaration. The last two kind of are, but are declarations made jointly by parties to a third party about two different things. Their form is similar but their function is different. Maybe there is a single language-label for both intent and belief, but I don’t know what it might be.
Not sure if this is really connected with the topic above, nor even if it really falls under ‘contract’ drafting, but if you don’t ask…
Any views on wording in a certification (in a sense I suppose a form of warranty or representation, perhaps even a unilateral contract?) which typically goes “I certify that X is Y to the best of my knowledge and belief”? (The particular example I often see is “I certify that document X is a true & faithful [& accurate &complete &c. &c.] translation of document Y…).
It seems rather legalese, possibly old-fashioned or redundant – if you know X is Y, you don’t need to believe the fact as well, and if you’re certifying it, presumably you’re vouching for the fact that you know/believe X to be Y anyway, so couldn’t one just get away with “I certify X is Y”?
Conversely, in the particular field of translation, the innate fuzziness of words means that interpretation always comes into play and can later be questioned, so as a possible way to cover against such subjective claims I’d be tempted to add, in place of the knowledge/belief thing, “…to the best of my ability” or something similar.
You’re correct, it isn’t relevant! :-)
If you have a question about a word or phrase, do a search on this blog. If it’s related to contract language, something might well come up. For example, if you search for “certify” …