The Definition of a Defined Term Doesn’t Constitute a Lexical Definition

The opinion in Johnson & Johnson v. Guidant Corp. (the case I discuss in my post “‘Willful’—It’s Ambiguous”) contains the following statement:

The relevant language in the no-solicitation clause defines the term “Representatives,” with some circularity, as “any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative.”

This reflects a common misconception. In fact, there’s nothing circular about including the word “representative” in the definition of “Representatives.” This is what MSCD 6.4 has to say on the subject:

It has been suggested that you should not use in a definition the term being defined. It is true that you should not use in a lexical definition the term being defined—it would be unhelpful for a dictionary definition of chair to include the word chair. In contracts, however, repeating the defined term in the definition is commonplace and permits the drafter to replace a cumbersome phrase with something more succinct, often a truncated version of that phrase. An example: “Trademark” means a registered trademark or service mark or any trademark or service mark that is the subject of any application, registration, or renewal.

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.