“Notice” or “Prior Notice”?

Last February, Wayne Schiess, Director of Legal Writing at the University of Texas School of Law, asked me whether I had any views on a question that he had posed in his blog: Is there a difference between giving notice and giving prior notice?

At the time my home office was draped in drop cloths, so my response was perfunctory and equivocal. Wayne ended up suggesting that there was a consensus that the concept of prior is inherent in notice, but he quickly followed up with the caveat that one of his readers had consulted Bryan Garner, who had indicated that sometimes notice can or must be given after the event, so prior isn’t redundant in prior written notice, and that transactional lawyers attending his drafting seminars concurred.

I recently decided to look into this question. None of my usual authorities provided any guidance, so I did my own analysis.

The Oxford English Dictionary gives as one definition of notice “an intimation by one of the parties to an agreement that it is to terminate at a specified time, esp. with reference to quitting a house, lodgings, or employment.” Thus you can arrive home, make a grand entrance, throw your hat/shoes/groceries across the room, and announce to your significant other, “I’ve given notice at work!” and have it be understood as meaning that you told that old bastard Throgmorton that in ten days (or some other interval) he could take that job and shove it.

But the OED says that the phrase to give notice also simply means to convey information. So to give notice can convey two opposite meanings—in one, information is given before the event in question, while in the other information is given after.

Here’s how these alternative meanings play out. Consider the sentence Acme shall provide Doe with notice of any change of address. Given the two possible meanings, this sentence is ambiguous.

One reading is that if Acme were to change its address and then inform Doe of the new address, it would have performed the obligation. In other words, in this context to provide notice means to notify. You could make this clear by modifying the verb provide with an adverb or adverbial phrase, such as promptly or within ten days, or by modifying the noun notice with the adjective prompt. It would be a good idea to do so.

But if instead you modify the noun notice with the adjectival phrase ten days’, the natural reading becomes that Acme is required to inform Doe in advance that it will subsequently be terminating the agreement. In other words, in this context to provide notice conveys the meaning of the first OED definition mentioned above. You could not conceivably suggest that Acme would be performing its obligation if it were to notify Doe of the change of address ten days after it had occurred.

This being the case, nothing would be served by referring to ten days’ prior notice rather than ten days’ notice. But given the two possible meanings of to give notice and the subtleties involved in distinguishing them, it’s understandable that for purposes of contracts, drafters should want to tack on prior in order to reinforce the fact that information is to be given before the event in question. Now that I’ve thought the matter through, you can include me in the prior notice camp. (For what it’s worth, my decidedly non-scientific survey of material contracts filed on the SEC’s EDGAR database in May 2006 suggests that the notice and prior notice camps are fairly evenly split.)

But when considering alternative usages, often you can sidestep debate, and that’s the case here. In general writing, a useful maxim to bear in mind is “verbs good, abstract nouns bad.” Notice is an abstract noun and could be said to constitute a “buried verb.” (See MSCD 13.7–9.) Replacing buried verbs with action verbs results in punchier prose and, in this case, would allow you to avoid the ambiguity inherent in to provide notice.

Consider the following alternative versions—one using buried verbs, the other using strong verbs—of two sentences conveying the different meanings of to provide notice. I think the strong-verb versions represent an improvement. Note that in the second sentence I take the opportunity to make it a condition to Acme’s changing its address than it notify Doe in advance—I think that makes more sense than phrasing it as an obligation. (See MSCD ¶ 3.100.)

Using Buried Verb

Acme shall provide Doe with prompt notice of any change of address.

Using Strong Verb

Acme shall promptly notify Doe if it changes its address.

Using Buried Verb

Acme shall provide Doe with at least ten days’ prior notice of any change of address.

Using Strong Verb

If Acme wishes to change its address, it must notify Doe at least ten days in advance.

While we’re on the subject of giving notice, here are some related thoughts.

First, I recommend that you refer to entire days when specifying a number of days for giving advance notice. (See MSCD ¶¶ 8.96–97.)

Second, if a contract contains a “Notices” provision that specifies that all notices must be in writing, then elsewhere in the contract you don’t need to refer to written notice.

Third, note the apostrophe in ten days’ notice. (See page 626 of Garner’s Modern American Usage, under “Possessives.”)

And fourth, if you’re specifying a period of time for advance notice, it would make sense to require at least that amount of advance notice. Otherwise, whoever is required to give notice would have only a one-day window in which to give timely notice. If you’re concerned about someone giving notice drastically in advance, you can stipulate, for example, that notice must be given at least ten days but not more than 30 days in advance.

Getting back to my prior notice analysis, note that my conclusion is roughly compatible with Wayne’s thumbnail summary of Bryan Garner’s view. But bear in mind that what’s at stake is a marginal gain in prose economy and clarity, as opposed to avoiding dispute—I haven’t found any case law regarding whether prior is inherent in the phrase to give notice.

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.