[Revised August 8, 2007]
I’ve previously blogged about how drafters often refer to a given set, then refer to subsets that compose all or part of that set, even though there’s no question as to the boundaries of that set. I’ve decided to call this phenomenon “needless elaboration.”
It’s like saying “I don’t eat fish, whether fresh-water or salt-water.” Simply saying “I don’t eat fish” conveys the same meaning.
A simple example of needless elaboration is the phrase at law or in equity.
Needless variation is also evident in the way drafters often use including to list items falling within a given set even though there’s no question that those items do indeed fall within that set. Such needless elaboration not only adds clutter, it also invites a court to conclude, however wrongheadedly, that the set in question is limited to the listed items or items comparable to the listed items. (This is discussed in my post on including without limitation.)
Contracts are full of such belt-and-suspenders drafting. Eliminating it would make life easier for the drafter and the reader. The only time elaboration isn’t needless is if you use it to make it clear that a given set includes something that one could otherwise conclude doesn’t constitute part of the set.
Here’s a good example offered by someone at one of my recent West Legalworks seminars: Fruit, including tomatoes.
And here’s an example from a contract: All matters arising under this agreement, including tort claims, are governed by New York law. If you were to eliminate the reference to tort claims, it could be open to question whether any tort claim brought by a party would constitute a matter arising under the agreement. And the reference to tort claims poses no risk, as no court could conceivably conclude that in this case “all matters” is limited to tort claims.
But don’t be too quick to dismiss contract language as needless elaboration. I just learned this lesson myself. A reader had asked me what I think about the bolded language in the following extract:
Neither party will be liable to the other for any incidental, punitive, special, consequential, or indirect damages of any kind (including damages for interruption of business, procurement of substitute goods, loss of profits, or the like) regardless of the form of action whether in contract, tort (including negligence), strict product liability or any other legal or equitable theory, arising out of or related to this agreement, even if the allegedly liable party has been advised of the possibility of such damages.
In the initial version of this post, I said that I didn’t see that anything would be gained by saying that that statement applies regardless of the form of action that gives rise to any such damages, because nothing in the statement suggests any restriction that would be negated by that assertion.
But reader Mike suggested that in the language that the bolded language was intended to serve a function analogous to including tort claims in the example cited above. In other words, it was intended to make clear that a party would not be entitled to claim incidental, punitive, special, consequential, or indirect damages in, for example, a tort action against the other party. Without the bolded language, the parties might dispute whether a tort claim either arose out of or was related to the agreement. Mike cited an interesting case dealing with such an exclusion.
Well, Mike was clearly right. In my defense, the bolded language would have been better placed after arising out of or related to this agreement. I took the language at face value and assumed that the bolded language modified only what preceded it. Thank you to Mike for setting me straight.
But the phrase legal or equitable in the bolded language does constitute needless elaboration; see the related post cited above.
The conventional wisdom, of course, is that most such elaborations arose to try to block “creative” lawyering, usually on the part of litigation counsel. At some point lost in the mists of time, a contract said (let’s say) “neither party is allowed to eat fish.” But then later some litigator noticed that the parties’ business together involved salt-water fish only. So he tried to argue that the parties never contemplated being prohibited from eating fresh-water fish.
Litigators are always going to look for possible arguments like that. Their thinking goes something like this (I speak as a former litigator): There’s no cost to me or my client if I make this argument. If the judge buys it, my client is ahead of the game. So hell yes, I’m going to take the shot; in fact, I’m ethically compelled to do so.
As a drafter, the trick is to try to think like a litigator, and like a judge, to assess where elaboration language is needed to cover a genuine risk of “creative” lawyer, and where it’s a waste of pixels and toner.