“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.