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?
Ken:
If you think of language of discretion as the negation of language of obligation (ie you’re not taking on an obligation), then this is the negation of language of performance (ie you’re not performing any action). “I do not perform the action of transferring rights to you.”
Is that worthy of a special name? I dunno. But it’s really not language of policy.
Chris
That’s what prompted me to float this trial balloon. But see table 1, example [1-2b].
I think that having more categories of contract language isn’t more helpful.
Retains isn’t operative; at best it’s a shortened intention (“Acme does not intend to transfer any rights…”) or perhaps an acknowledgment (“the parties acknowledge that Acme does not transfer any rights…”).
These are expressions you’ve already contemplated.
I think “does not intend” expresses a different meaning. Saying “does not acknowledge” suggests it’s an external fact, whereas it reflects the effect of the contract. But I have yet to apply my mind to this!
Rick:
I disagree. I think we have to think about different speech acts. “I promise” is a speech act. Saying it makes it so. “I transfer” is, too, at least as to intangibles. Similarly, “I appoint” is a speech act. Negations of the speech acts (I don’t promise, I don’t transfer, I don’t appoint) are meaningful, as are some negations of the object (I promise not to) and negations of of the object (I do t promise not to). These seem to me like things that we ought to be able to talk about in a structured way.
Chris