Welcome back to the categories of contract language! Consider the following alternatives:
Language of Discretion
The Customer may purchase Widgets only by using Acme’s purchase-ordering system to submit a purchase order to Acme.
Language of Obligation Used to Express a Condition
To purchase Widgets, the Customer must submit purchase orders to Acme through Acme’s purchase-ordering system.
Which do you prefer? I prefer the second alternative. Using instead language of discretion would suggest the possibility of breach if the customer were to purchase widgets any other way. That doesn’t make sense: there is no other way to effect a purchase.
I agree, but choice 2 also creates an unintended (?) ambiguity — that customer is in breach if they buy widgets anywhere else but ACME. Depending on whether Widgets are available via any other channel, this could be a problem.
Perhaps “To purchase Widgets from ACME, customer must use ACME’s purchasing system.”
Yep. More generally, this language is based on something I found in a contract. If I were creating something of my own, I expect I’d make other adjustments.
Unless it is a contract of exclusivity for purchasing widgets from ACME, I think it would be safe to say that the purchaser can purchase widgets elsewhere without submitting a purchase order to Acme.
Walker:
In many contracts, I have the two paired together, in part to make clear that the quantity to be purchased is indeterminate and that the deal is not exclusive. Something like this:
“The Customer may purchase widgets from the Vendor under this Agreement. To do so, the Customer must …”
Chris
Chris, I like your approach, but I don’t get why in the first sentence the Vendor grants discretion instead of taking on a duty.
My whole thumbsucker on the post is below:
As usual, the best way to say a thing depends on the drafter’s precise intended meaning (the drafting goal).
From versions [1] and [2] in the post, I gather that the drafting goal is to place a duty on Acme to sell Widgets to the Customer if the Customer submits to Acme purchase orders for Widgets on Acme’s purchase-ordering system.
If that’s so, I submit my version [3] as the directest way to the goal:
[3] Acme shall sell Widgets to the Customer if the Customer submits purchase orders on Acme’s purchase-ordering system.
I would critique versions [1] and [2] (those in the post) as follows:
[1] Language of discretion: ‘The Customer may purchase Widgets only by submitting purchase orders to Acme’s purchase-ordering system’.
This decodes to ‘Acme hereby grants the Customer leave to purchase Widgets from Acme, but only if the Customer submits purchase orders using Acme’s purchase-ordering system’.
As Ken sometimes says, ‘World Tennis Federation?’ In the ‘may’ formula, if either party is taking on a duty, it’s not visible to the naked eye, and why should that ever be?
[2] Language of Obligation Used to Express a Condition: ‘To purchase Widgets, the Customer must submit purchase orders to Acme through Acme’s purchase-ordering system’.
First, ‘to purchase Widgets’ is a contorted matrix clause. It means ‘Acme shall sell Widgets to the Customer’ and sets out the duty that the conditional clause conditions. Why not just lay out the pertinent duty?
Second, no reason exists to use language of obligation in the conditional clause, and it risks confusion. Why not tweak a word or two and make the meaning clear, as in ‘if the Customer submits purchase orders to Acme through Acme’s purchase-ordering system’?
Forced to choose between [1] and [2], I’d choose [2], because when you brush the foam off the beer, it expresses Acme’s conditional obligation to the Customer, which was the drafting goal. But I like [3] best. Cordially, Wright