“Not Unreasonable”

[Updated 2:40 p.m. June 15: Time for Adams to eat some crow. With respect to the first example, I agree with Paul Comeaux’s comment: the reference to “shall not be unreasonable” echoes the reasonableness standard of the requirement for consent, so it would probably be counterproductive to eliminate the double negative. Paul, thanks for setting me straight. I’m still comfortable with my fix in the second example.]

Although contract drafting is a very limited and stylized kind of writing that’s analogous to software code, it’s still subject to many general guidelines that apply to any kind of writing. That’s why MSCD contains a chapter on “Drafting As Writing.”

In that regard, the following just caught my eye in a contract:

Notwithstanding the provisions of Section 23, if (i) … , (ii) … , or (iii) … , it shall not be unreasonable for Landlord to withhold its consent to an assignment or subletting to such proposed assignee or sublessee.

On seeing that, I asked myself, What’s with the double negative?

As a general matter, to use a double negative is to beat about the bush. Whatever rhetorical nuance you might be seeking by using a double negative in everyday usage (He’s not unattractive; Your argument is not unintelligent) has no place in contract language.

But how do we fix the double negative in the example above?

The simplest fix would be “it will be reasonable for Landlord to withhold” (using will rather than shall, as this is language of policy, not language of obligation). But it would make more sense to use instead “Landlord may withhold”. By using the double negative, the drafter ended up two steps removed from the clearer alternative.

But in a different context the simple fix might work. Here’s an example from the SEC’s EDGAR system (excuse the incidental crappiness):

The Company will provide any comments received from the SEC to the Investors and their counsel as promptly as practicable upon receipt thereof and shall use its reasonable best efforts to consult with the Investors and their counsel and, to the extent it is not unreasonable [read reasonable] for it to do so, to resolve and comply with all comments of the staff of the SEC promptly ….

Incidentally, not unreasonable occurs in about 200 contracts filed on EDGAR in the past year, so it’s not something you see every day, but it’s not rare.

By the way, don’t get too carried away in turning positive your double negatives. You wouldn’t want to turn which Acme shall not unreasonably withhold to which Acme shall reasonably withhold! In that context, the not modifies withhold, not unreasonably, so it’s not a double negative. I’d make that clearer by saying which Acme shall not withhold unreasonably.

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.

12 thoughts on ““Not Unreasonable””

  1. Ken,

       As a general rule, I agree with you that eliminating double negatives is a good thing. In this particular case, however, I prefer the double negative.

       A bit of context will help me make my point: Your example has to do with a landlord’s right to object if a tenant wants to assign its rights under a lease to someone else. The landlord’s preference is that the landlord has sole discretion to reject a proposed lease assignment. The tenant’s ideal would be that the landlord has no right to block a proposed lease assignment.

       The tenant’s fallback is to accept that the landlord’s consent is needed as a condition to the tenant’s right to assign its lease, but to add the proviso that “the Landlord will not unreasonably withhold its consent.” or that the landlord’s consent “will not be unreasonably withheld.” But this phrase can concern a landlord, who do not want a court’s judgment substituted for his own as to what is “reasonable.”

       One solution for the landlord is to accept the tenant’s phrase (“the Landlord will not unreasonably withhold its consent”) but to turn this phrase into a quasi-defined term: hence, the construction “it will not be unreasonable for the Landlord to withhold its consent if [list 3-15 reasons here].”

       But is the double negative really necessary? In this case, it’s better, because:

    1. It reads well when the phrases follow back-to-back: “Tenant may not assign this Lease without Landlord’s consent, which Landlord may not unreasonably withhold. It will not be unreasonable for Landlord to withhold its consent if. . .”

    2. For whatever reason, I’ve found it easier to sell this construction to tenants when representing landlords.

    3. It uses the phrase “which Landlord may not unreasonably withhold” almost as if it were a defined term, which I think reduces ambiguity.

  2. Thanks for flagging the point – but I’m not so sure the rhetorical nuance is never appropriate.  For example, I can imagine a judge could be more inclined to conclude that a party did not act unreasonably than to make an explicit finding that he acted reasonably.  While this is a rhetorical nuance, I think it *could* have implications, especially in the exercise of an unknown party’s discretion…

  3. Ken, re your second example, viz., “The Company will … to the extent it is not unreasonable [read reasonable] for it to do so, [take certain action]” :

    There may be a gray area of indeterminacy between “not unreasonable” and “reasonable” —

    *  Under the former language, the Company must take the specified action even if it’s unclear whether doing so would be reasonable;

    * In contrast, under the latter language, the Company arguably need not take the specified action if it were unclear whether doing so would be reasonable.

    Trial counsel could readily argue about this in court.

        • D.C.: I never want to use language that people can end up fighting over. Your comment confirms that not only is not unreasonable awkward, it might also inspire people to get creative in an unhelpful sort of way. Ken

          • Ken,

               You said, “I never want to use language that people can end up fighting over.”

               I have to disagree with you on this. If my choice is between clear language in the other guy’s favor or clear language in my favor, of course I’ll choose the clear language in my favor. But if the choice is between clear language in the other guy’s favor and “language that people can end up fighting over,” I’ll pick the latter every time.

          • Paul, in general I would agree with you, subject to one special case.

            Suppose a vendor and an important prospective customer disagree about the meaning of a contract provision. Often they might agree to disagree, sign the contract, and get on with their business, on the assumption that they’ll cross that bridge if and when they come to it.

            But suppose the parties do come to that bridge. The vendor’s sales force won’t want to jeopardize their relationship with the customer.  The customer might well be listed on the vendor’s Web site as a reference customer. All that will give the customer more leverage.

            So ISTM that in those situations, it may be better to get the argument resolved BEFORE the deal is signed — either that or the vendor should recognize that later it might be strongly motivated to give in to the customer’s interpretation.

          • Paul: By “language that people can end up fighting over,” I mean language that’s unclear. There’s never a good reason to include unclear language. Electing not to address an issue, in the manner described by D.C. in his comment below, is another matter. Ken

          • Ken,

              I think that D.C. is saying that he would be wary of unclear language where he is representing a vendor, and the parties have an ongoing relationship. Of course, that makes sense. If the dynamics are that my client is just not going to fight over unclear language because of concerns about the overall relationship, then unclear language serves no purpose.

              But to be clear, I am saying that making a conscious decision to sign a contract with unclear language is often the correct decision. I think that our disagreement on this issue arises from the fact that we have different goals. Your goal, which I think is admirable, is to promote good, clear legal drafting, in the abstract. My goal is to end up with a contract favorable to my client.

              Here’s an example of when accepting unclear language may be the best decision: I represent a start-up retailer taking space in a large shopping center. The landlord (understandably) sends a heavy-handed lease and really doesn’t want to negotiate. There is an anti-assignment provision in the lease that is very clear, follows all the rules of Ken’s book, but unfortunately (for me) is 100% landlord favorable. I send proposed compromise language to the landlord. The landlord’s attorney says “no, but I’ll do this, and that’s it–the landlord is not going to spend any more time on this lease,” and sends me back some muddled changes to the landlord’s provision, that arguably help the tenant, but could be argued either way. So Ken, in this situation, what do you do?

          • Paul: I don’t want to be dogmatic: My default mode is boy scout, but I acknowledge that in a given context it may be that expediency prevails. Ken

  4. This may be a good place to use passive voice. Why not say “Examples of reasonable grounds to withhold consent include” and then continue with the laundry list? Using the word “examples” also avoids implying that your list of reasonable grounds is exclusive.


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