Regular readers will know that the foundation of controlled drafting is how you use verb structures. I address that in my “categories of contract language” framework. (See this post for my quick-reference chart on the subject.)
One of the more crowded categories-of-contract-language topics is when the obligation is imposed on someone other than the subject of the sentence. Well, it’s now going to get even more crowded. After rooting around for 23 years, I will now address for the first time two new variants for imposing an obligation on someone other than the subject of the sentence! Such are the seemingly endless nuances of this subject. (Or maybe I’m just slow!)
Here’s one new variant: Acme requires Widgetco to submit the following documents (instead of Widgetco shall submit). I spotted it a few days ago. It’s not referring to an obligation stated elsewhere. Instead, the drafter is using this structure to impose an obligation. Acme is the subject of the sentence, but the obligation is imposed on Widgetco.
But wait, there’s more! Another new variant was inspired by last year’s post on this agreement allows. If some drafters use this agreement allows (or permits) to express discretion, I knew it had to be the case that some drafters would use this agreement requires to impose an obligation. So today I let my truffle-hunting pig loose on Edgar, and this is what she found (emphasis added):
Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law, and therefore this agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial.
It’s commonplace for this agreement requires to be used to refer to an obligation stated elsewhere in a contract, as in Whenever this agreement requires a Subsidiary of any of the MPLX Parties to take any action. But that’s not what’s happening in the above example. Instead, the drafter is trying to impose an obligation.
What these two examples share is that they treat obligations not as something that inherent in a verb structure, which is the case when you say Acme shall purchase the Shares. Instead, obligations require agency: they have to be imposed by something.
Clearly, the rational response to that notion is, No thanks! It complicates matters, and it’s ambiguous, as it suggests to the sensible reader than you’re referring to an obligation stated elsewhere.
But where would we be without the fun of suboptimal verb structures? Look for these variants in the fifth edition of MSCD.