More Industry-Wide Elegant Variation: Amendments in Writing

Last year I wrote in this blog post about “elegant variation” across the contracts universe in how one says you have to keep confidential information to yourself.

In the same spirit, consider these different ways of requiring that amendments be in writing:

  1. [To be effective,] Any amendment to this agreement must be in writing.
  2. An amendment of this agreement will be effective only if it is in writing.
  3. No amendment of this agreement will be effective unless it is in writing.
  4. The parties may amend this agreement only in writing.
  5. The parties may not amend this agreement except in writing.
  6. This agreement may not be amended orally.

Thanks, but that’s more than we need. Me, I opt for No. 1, or rather the version of No. 1 with the stuff in brackets at the front: that makes it clear you’re expressing a condition. (In “categories of contract language” speak, No. 1 with the bracketed stuff is a condition expressed using language of obligation.) Without the stuff in brackets, you could read No. 1 (particularly if it’s used with shall instead of must, which is often the case) as if it’s an obligation, leading to a remedy for breach if someone amends other than in writing. That wouldn’t make sense.

I also opt for No. 2, which expresses a condition using language of policy. The only difference between No. 2 and No. 3 is that No. 2 is the positive version and No. 3 is the negative version. (You know me, Mr. Accentuate the Positive!)

No. 4 and No. 5 are positive and negative versions that share the same defect: they suggest that if you exceed the discretion by amending orally, you’ll be in breach.

No. 6 expresses the obverse of requiring that amendments be in writing. That’s obtuse.

The elegant variation doesn’t end there—drafters might use alternatives to express a given component of one of the above alternatives. For example, it’s easy to find examples that use shall where the above examples use may. And a sentence might use one or more of the following:

  • amendment
  • variation
  • modification
  • change

All this variety does no one any good. How do you fix it? With document assembly plus strong editorial control. And by “strong editorial control,” I mean MSCD.

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.