Crazy things are afoot in the categories of contract language. In addition to my considering creating “language of state of mind” (see this post), I’m now considering creating another new category: “language of inaction.”
Consider the following sentences:
- Under this agreement, Acme retains all rights to Widgetco Intellectual Property.
- Acme is not transferring under this agreement any rights to Widgetco Intellectual Property.
In the current regime, they fall under “language of policy.”
Language of policy is for stating ground rules of the contract—stuff that happens automatically. For example, “Any attempted transfer of Shares in violation of this agreement will be void.” And “California law governs all Proceedings arising out of this agreement and disclosure or use of Confidential Information.” So it makes sense to think of those two sentences as falling under language of policy.
But except for sentences that are inappropriately put into language of policy (see the section on “Using Language of Policy to Obfuscate”), sentences using retains (and comparable verbs) and is not Xing are the only sentences I can think of at the moment that involve inaction by parties. Because they relate directly to matters directly involving the parties, it might be that such sentences are best grouped with language of performance, obligation, discretion, and prohibition, instead of being outliers in language of policy.
What do you think?
