The image above consists of the introductory clause from a form of merger agreement I encountered online. It’s interesting in two respects.
First, it doesn’t say “This Agreement and Plan of Merger is dated … and is between”. Instead, by saying “This is an Agreement and Plan of Merger”, it puts the verb up front. That’s unhelpful, because it has the introductory clause serve the function of revealing to the reader that they’re reading a merger agreement. The reader doesn’t need that help: the title, in all capitals at the top, has already told the reader that!
And second, this contract doesn’t create the defined term “this Agreement”. Nevertheless, later in the contract it uses a capital “A” in “this Agreement.” That’s consistent with the introductory clause giving initial capitals to to the full reference to the kind of agreement. In both contexts, the initial capitals are what I call in this post, for lack of a better term, “the blowhard’s initial capital”—in other words, initial capitals given to written work product for no good reason. This is the first time I’ve seen this Agreement without it being treated as a defined term. I’m sure that if I were to look for other examples, I’d find lots of them.
As always, don’t give initial capitals to references to a kind of contract or to this agreement. They’re just things. Like pen. Or car.
The image immediately above is the lead-in from the same contract. (I call this kind of thing a “backstop” recital of consideration; see MSCD and this 2015 article for more about that.) What’s of interest for our purposes is the way it says that this agreement contains … agreements! Therein lie the seeds of confusion over whether a reference to “agreement” is to the entire contract or to some part of it.
The fix isn’t, gawd help me, to create the defined term this Agreement! Instead, the fix is to not use agreement to refer to part of a contract.
