The other day I saw in a contract—in an American Institute of Architects standard contract, no less—see to plus an abstract noun. I knew it was dubious, so I tweeted about it. And because it was interesting enough, I took the next logical step and dropped it into the manuscript of the fifth edition of A Manual of Style for Contract Drafting.
But MSCD5‘s treatment of verb structures is sprawling and intricate, so adding see to plus abstract noun (and see to it that) was like adding pieces to an edgeless, free-form jigsaw puzzle—they had to connect with what was already there.
To that end, I added this.
And of course, I added entries to the index.
Why bother? Because I expect that MSCD will be the only book of its kind, ever. For various reasons, I don’t see anyone following in my footsteps. So I want MSCD to be as comprehensive as reasonably possible.
(Go here for all posts about MSCD5.)
5 thoughts on “MSCD5: “See To” Sneaks In Under the Wire”
Hi Ken, Shall cause sounds legalistic to me. Not as much as shall procure, but legalistic nonetheless. More importantly, though, I think it’s not accurate. If a nonparty completes a required action without the obligated party causing it, would the obligated party be in breach? No, because we don’t care who causes of the action; we only care that action is complete. That’s why shall ensure seems to me a more accurate description of what you want the obligated party to do–to ensure the action is done, regardless of cause. You say it is not clear what the implications are, but I don’t see the ambiguity. Can you elaborate?
Hi Eric. Geez, sorry about the ads. They will soon be gone, and so, at least as an experiment, will blog comments. You might be the last commenter!
I don’t think of shall cause as being legalistic. It’s used for a nonparty that’s under the control of a party. I can’t think of a clearer or more concise phrase. Because the nonparty is under the control of the party, your scenario doesn’t apply: the nonparty wouldn’t take the action without the party causing it.
Using shall ensure is more casual. It’s equivalent to shall make sure. It’s lacking the connotation of causation.
Hi Ken and Eric,
Thanks for your commentary. I am currently inclined to side with Eric. I use “shall ensure” where we acknowledge that (i) a third party must perform a certain act (or omit it) but is not a party to the contract, and (ii) one of the parties should at least oversee (and in principle has some means to enforce) that the act is performed (or omitted). I do not entirely understand that it would lack a connotation of causation, or that it would be problematic in an agreement. Could you please elaborate further?
It makes a lot of sense to me that, in a construction contract, the owner or architect might pay subcontractors and suppliers. That’s not that uncommon, especially when the owner or architect is sophisticated. So it seems like a good substantive rule to have — the owner or architect is not required to pay subs or suppliers except to the extent that the documentation says so. It helps defeat a silent assumption that one party might have.
I’d go with something like, ‘By this agreement, no party takes on any obligation to any person owed any sum by any contractor’.
Maybe background law makes one or both parties liable to one or more subcontractors or suppliers, but the above language makes clear that no such obligation arises from the contract.
Another reason that the passive ‘is not required to’ is undesirable here is that it’s too broad, like saying ‘nothing requires either party to pay subcontractors anything’.
What if background law requires such payment?
Are the parties trying to tell the court what the law is?
The above language makes clear that the parties are not shirking a non-contract duty, but merely specifying a duty neither party is assuming by contract.