A feature of traditional contract drafting is adding to provisions that already express the desired meaning usages that serve only to say, And we really mean it! I refer to that as “rhetorical emphasis.”
Recently I came upon such usage, in any way. I decided it was high time that I compile a list; you’ll find it below, with an example accompanying each usage. Can you think of other such usages?
Redundancy could be considered rhetorical emphasis, but if I started adding unless and until, each and every, any and all, and the like to the list, it would become long and not particularly helpful. So I limited the list to words and phrases that when considered on their own constitute rhetorical emphasis. Of course, they can be combined, as in wholly and fully and in any manner whatsoever.
And a word or phrase can constitute rhetorical emphasis in one context and serve a different function—legitimate or not so legitimate—in a different context. An example of that is the word absolutely. (You can expect a blog post soon about absolutely.)
The fix for rhetorical emphasis is either just deleting it or replacing it with something else. In some examples below I’ve noted how I’d replace the usage in question. In the other examples, you would just delete the rhetorical emphasis. I cheerfully acknowledge that it might be best to make other or additional changes, but that’s beyond the scope of this post.
Now, here’s the list:
absolutely: It is hereby especially emphasized that in any case, the Lessee must absolutely refrain from performing actions involving cooking and/or frying in the Leased Property …
at no time: The Escrow Agent will at no time [read not] acquire any ownership interest in the Offering Proceeds.
completely: … the Executive shall keep the terms of this agreement completely confidential …
fully: The Consultant is wholly and fully responsible for any taxes owed to any governmental authority with respect to any fees the Company pays the Consultant under section 4.
if and only if: This agreement will become effective if and only if [read only if] Acme issues the Shares before the Termination Date.
in all respects: This agreement is in all respects governed by Minnesota law.
in any manner: No benefit payable under the Plan is subject in any manner whatsoever to alienation, sale, transfer, assignment, pledge, attachment, or encumbrance of any kind.
in any way: … none of the Buyer Indemnitees will be liable in any way for any injury, loss, or damage arising out of any such entry that occurs to Seller or any of Seller ’s representatives under this agreement.
of any kind: No benefit payable under the Plan is subject in any manner whatsoever to alienation, sale, transfer, assignment, pledge, attachment, or encumbrance of any kind.
strictly: The Company guarantees payment of the Guaranteed Obligations strictly in accordance with the terms of this agreement and the Notes.
under no circumstances: The Depositary will under no circumstances [read not] be liable for any incidental, indirect, special, consequential, or punitive damages.
whatsoever: No Lender has any right of action whatsoever against the Administrative Agent.
wholly: The Consultant is wholly and fully responsible for any taxes owed to any governmental authority with respect to any fees the Company pays the Consultant under section 4.
15 thoughts on “A List of Rhetorical-Emphasis Contract Usages. (Can You Add to It?)”
In the case of “fully” it might be better to rewrite the sentence so as to use “solely” or “alone,” e.g. “the Consultant alone is responsible…”, the idea being that as between the consultant and the client it’s the Consultant’s responsibility. Of course, you could say, “as between the parties, the Consultant is responsible…”
Doubtless, but as I noted in a sentence I added to this post, that sort of rewrite is beyond the scope of this post.
A narrow taxonomic point regarding ‘redundancy could be considered rhetorical emphasis’:
I’m coming to think that the cardinal virtues of contract drafting are accuracy, clarity, and concision, and that the rest fall under one or another of the three, mostly under clarity and concision.
Accept that or not, ‘redundancy’ is an umbrella term for all or most sins against concision: circumlocution, elegant variation, prolixity, repetitiousness, rhetorical emphasis, verbosity, and so on. Any excess over need is a redundancy.
So it’s probably better to say ‘rhetorical emphasis is a kind of redundancy’ than the other way round.
Thesis: ‘If and only if’ is not rhetorical emphasis. Reasoning:
(1) ‘If’, (2) ‘only if’, and (3) ‘if and only if’ mean three different things.
(1) ‘If’ means that when the condition is met, the matrix clause is true. But the condition could be unmet and the matrix clause true for other reasons. ‘If the general tells you to go, you must go’. It could also be the case that if the lieutenant tells you to go, you must go. (Satisfying the condition is sufficient but not necessary for truth of matrix clause.)
(2) ‘Only if’ means that unless the condition is met, the matrix clause is not true. ‘Only if the general tells you to go need you go’. Maybe there are more conditions on your duty to go, such as possession of a communication device. (Satisfying the condition is necessary but not sufficient for truth of matrix clause.)
(3) ‘If and only if’ means that satisfying the condition will make the matrix clause true, and nothing else will. ‘If and only if the general tells you to go need you go’. An order from the general, without more, raises a duty to go, and nothing else raises a duty to go. (Satisfying the condition is both necessary and sufficient for truth of matrix clause.) –Wright
+1, and articulated better than I could have.
That said, I would bet most instances of “if and only if” were never intended to have meaning (3).True instances of meaning (3) are probably pretty rare in contract drafting.
Nope. This sort of distinction might have some basis in logic, but I deal with the English language.
Love the irony of multiple synonyms for verbosity in a rant on concision.
“A feature of traditional contract drafting is adding to provisions that already express the desired meaning usages that serve only to say, And we really mean it! …”
Yes, right. Sometimes we contract drafters really need to hammer a point home so that nobody can just dismiss it as mere boilerplate.
“… The fix for rhetorical emphasis is either just deleting it or replacing it with something else.”
Wait, what? Why is rhetorical emphasis bas? Why should we delete or replace it? Sometimes, we as the contract drafter really want to say “and we really mean it!”
I think this post is missing some analysis.
Nobody “really needs to hammer a point home” in a contract. Either the obligation is clearly stated or it isn’t. Hammering points home is like shouting. Leave it out of contracts.
Mark: I agree completely but commercial codes exist that require certain provisions to be ‘conspicuous’, a requirement that most drafters satisfy by ALLCAP SHOUTING. So at least some legislators believe that hammering some things is good.
In addition, some drafters fear an ‘I didn’t notice that provision’ defense, and use various forms of hammering, including rhetorical emphasis, in an effort to insure against an, er, unwise judge (or Chinese arbitrator) excusing noncompliance with an unhammered provision.
I’m with you on this, but recognize the existence of the McDaniel camp, who cry ‘An ounce of drafting prevention is worth a pound of courthouse cure’ and ‘a fight avoided is better than a fight won’. –Wright
“some legislators believe” should be prima facie evidence of the opposite. If some common-law courts believed it, I might give that some weight.
I;d distinguish between functional emphasis, which draws the reader’s attention to the entire provision in question, and rhetorical emphasis, which is almost always within the provision in question, so does not draw any extra attention to it (and might actually hide it behind more verbosity).
In some contracts oriented towards small businesses, I have a provision with a title something like “What is extra-important in this contract?” It then of course says that every word is super-important, but some laws might require us to call special attention to X, Y, and Z. I put that near the beginning of the document. That’s my functional emphasis.
I disagree completely. There are circumstances where this type of drafting is useful and appropriate. In my own practice, I draft different types of contracts in different circumstances.
Investment agreements between very sophisticated financial services providers with their own lawyers, we would use very tight language that does exactly what is intended and no more.
However, we also draft (for example) internal compensation and control agreements with individuals who may be well highly compensated and financially sophisticated but not represented by their own lawyers nor legally sophisticated. For reasons of relationship and industry structure, nobody is going to litigate one of these agreements. Nevertheless, it is immensely valuable to point at an agreement years later and say “not only does the agreement say [XYZ], the agreement says that you really mean it!”
This is not rare; I would estimate that being able to point to past agreements and say “you really meant it!” comes up once or twice a year.
Again, I am not saying that it is always appropriate, but to say that it never appropriate seems rather dismissive.
What Mark says.
Ken, I saw a new one just the other day – “well and truly”. I quote: “Each Party will from time to time and at all times hereafter, well and truly save, defend, and keep harmless and indemnify the other Party…”. I barely knew where to start…
Gawd help us. I think well and truly qualifies for the list, because it’s more than redundancy, as neither element makes sense. I have in mind that the core is truly, with well tacked on, but I’ll do some research.