“Likely”

The word likely occurs frequently in contracts. Here are some examples that I selected at random from EDGAR:

There is no Action pending or, to the Knowledge of the Company, threatened that could result in … nor, to the Knowledge of the Company, is there any event or set of circumstances which are reasonably likely to result therein.

As used herein, the term ” Disability ” shall mean a physical or mental incapacity or disability which has rendered, or is likely to render, Executive unable to perform Executive’s material duties for a period of either (i) 180 days in any twelve-month period or (ii) 90 consecutive days, as determined by a medical physician selected by the Company;

It is specifically understood and agreed that any breach of the provisions of Section 8 of this Agreement is likely to result in irreparable injury to the Company and that the remedy at law alone will be an inadequate remedy for such breach

Contractor shall provide continuous adequate protection of the Work, Company’s property and adjacent property, and take all necessary precautions to keep and maintain the workplace free from recognized hazards which are likely to cause death, illness or injury to persons or damage to property.

There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.

First, let’s consider what likely isn’t—it isn’t vague. Vague words such as promptly and material require that you assess a given set of circumstances from the perspective of a reasonable person. By contrast, likely would seem something much simpler—an expression of the degree of probability of something occurring.

But likely poses two problems. First, what is the degree of probability? Here’s what Garner’s A Dictionary of Modern Legal Usage (2d ed. 1995) says (I just purchased the third edition on Amazon):

likely has different shades of meaning. Most often it indicates a degree of probability greater than five on a scale of one to ten. … But it may also refer to a degree of possibility that is less than five on that same scale.

So it would seem unclear what degree of probability is indicated by likely.

Another problem is that referring to a mathematical degree of probability is fine when you’re rolling dice or playing cards, but it probably won’t be relevant for purposes of contract provisions featuring likely. So arguments over likelihood quickly become murky as you move from one or other end of the spectrum of probability into the middle. For example, I wouldn’t want to be involved in a debate over whether a given injury has a 49% or a 51% chance of rending Executive disabled.

There’s no way to get avoid using likely in certain contexts, but you should be aware of the uncertainties.

Oh, and drop reasonably from reasonably likely—nothing is accomplished by adding vagueness to a degree of probability.

 

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.