You’re a client. I give you my redraft of one of your templates. We discuss my version. During those discussions, you ask that I restore the capital A to this agreement.
Here’s what MSCD 2.110–.110 says about that:
It’s common practice to create in the introductory clause the defined term this Agreement. … But this defined term is unnecessary: the definite article this in references to this agreement makes it clear which agreement is being referred to. The title (see 2.2) and introductory clause (see 2.13) of a contract might describe that contract as being a particular kind of agreement, such as an agency agreement or a franchise agreement, but that wouldn’t be an impediment to referring thereafter to this agreement without having made it a defined term.
And for the same reason that it’s best to use lowercase letters in any reference to an agreement (see 2.18), it’s preferable not to use a capital A in references to this agreement.
You’re nervous about making that change? Well don’t be, as there’s no rational objection to it. Game over, case closed.
Of course I’m aware that the first thing someone reviewing a draft containing instances of this agreement might be inclined to do is a global search-and-replace changing them all to this Agreement. So why not cede the battle up front? After all, nothing is at stake, right?
If I were calling the shots, I wouldn’t take that approach, and not just because I’m a maniac perfectionist.
Instead, when sending the other side a new draft, I would clearly and politely explain the following in the accompanying email:
- the draft reflects the modern style
- the modern style is explicated in MSCD
- we’d be happy to discuss anything that might be confusing or might not reflect the deal
- but we won’t welcome comments aimed at inserting traditional legalese just because that’s what the other side is used to seeing
If you make that clear up front, you greatly increase the odds of your not having to waste time dealing with annoying pushback. That’s something I’ve discussed several times on this blog, including in this 2013 post and and this other 2013 post.
As for this agreement, little is gained by throwing it to the wolves. Anyone who gets bent out of shape about this agreement is likely to have a problem with other modern usages, so you’re likely to find yourself discussing those usages.
Using this agreement can actually work to your advantage, as it offers a convenient way to draw a line in the sand. It appears early in the contract, and the explanation for it is simple. Consider offering it as an example in your explanatory email. Getting the other side to accept this agreement would pave the way for their accepting other novel usages. On the other hand, if someone nevertheless insists on your using the capital A, you’ll know that you’re dealing with a reactionary jerk who is willing to ignore the convention that you don’t mess with the other side’s draft without good reason. It’s best to know that early on, so you can adjust accordingly.
So I recommend sticking with this agreement.
I do not necessarily disagree with your assessment – since it is hard to argue that “this agreement” refers to anything other than the agreement itself — but I also do not see why you would prefer it to “this Agreement”, since the latter seems like a relatively minor/simple change that results in a significant increase in clarity.
Like you, I am a proponent of “modern style” and avoiding legalese, but I also tend to err on the side of defining commonly-used terms rather than using generic terms.
Plus, I tend to correct the use of “this agreement” to “this Agreement” when redlining contracts drafted by others because I do not trust that they used this term consistently and avoided any potentially-confusing usage. So rather than analyze each instance, I simply replace it to avoid potential confusion. Perhaps this is a lazy shortcut, but I think it increases clarity with relatively minor effort.
“[A] relatively minor/simple change that results in a significant increase in clarity”? That’s preposterous. That’s like saying that using a capital C in car would make “I like his car” clearer.
Instead, the unnecessary defined term and unnecessary initial capital add a bit of clutter and make a contract a little bit harder to read.
It follows that changing this agreement to this Agreement represents a step backward. It’s also obnoxious.
If you’re going to be a proponent of the modern style, you might find my book helpful.
Preposterous might be a bit of an overstatement, but I acknowledge your point.
Using your example, there might not be any ambiguity when you say “I like his car” as long as he only has one car. But if he has multiple cars, then this statement is not clear at all. However, if we define “Car” as his red 1992 Buick Skylark with a certain VIN, then by saying “I like his Car”, there is no question to which car you are referring, whereas saying “I like his car” could refer to any of the three cars.
Admittedly, the term “agreement” is less prone to ambiguity than a term like “car”, because you are referring to the document itself (and, thus, there is likely just one “agreement”). But the term “agreement” is likely to appear in the contract in other contexts, as well. So I see no reason to draw a line in the sand and refuse to use “this Agreement” when doing so is (a) simple and (b) avoids confusion.
Or perhaps I am just wrong and should read your book.
The crucial word is this. You’re referring to this agreement and no other, so your car example is irrelevant. No one has yet presented me with an example of confusion caused by this agreement.
What is the downside to using “this Agreement” in contracts? In my view, your objections are stylistic and not substantive.
What’s the downside? It doesn’t make sense. In English there are certain conventions regarding when you use initial capitals. Using a capital A in this agreement is inconsistent with those conventions. So you end up with an unnecessary defined term. The more unnecessary defined terms you have in a contract, the harder it is to read and the more cluttered it is.
That by itself is good enough reason to get rid of this Agreement. But beyond that, it’s symptomatic of what I call “passive drafting,” in other words undue deference to whatever it is one happens to be copying. A contract with this Agreement is sure to be filled with other suboptimal usages that cumulatively create a stylistic and substantive fog.
Thank you for the reply Ken.
Again, style over substance.
If the drafter of the contract uses “this Agreement” instead of “this agreement” how has he created an unnecessary defined term? I doubt the vast majority of readers would conclude that a contract is harder to read and is more cluttered because the author(s) used “this Agreement” instead of “this agreement”.
Why is the use of “this Agreement” more symptomatic of passive drafting than the use of “this agreement”?
Some writers prefer to employ “this Agreement” for emphasis. That they use “this Agreement” does not mean that they are copying a template or document conceived by others.
It is okay to use the language of emphasis, particularly in legal documents, lest ye awaken the embers of ambiguity.
WTF!
First, a defined term either serves a purpose or it does not. If it doesn’t serve a purpose, you’re inflicting on a contract unnecessary initial capitals. It’s accepted that initial capitals make prose harder to read. And the definition itself takes up room. Ergo, an unnecessary defined term is a bad thing. And I don’t care about your imagined “vast majority of readers.”
Second, when you copy usages that are pointless, that’s passive drafting. Contracts that use This Agreement invariably contain a boatload of other problematic usages.
Third, it’s self-evident that the capital A in this Agreement is for emphasis. But what’s the point of that emphasis? There is none.
And fourth, I’ve already established to my satisfaction that this Agreement has nothing to do with ambiguity. After all, that’s the point of this post.
“WTF” – you have just inflicted on your post unnecessary initial capitals.
Let us break down your second paragraph.
You write that if a defined term does not serve a purpose, “you’re inflicting on a contract unnecessary initial capitals. It’s accepted that initial capitals make prose harder to read.”
If one grants the truth of the second sentence, why would a contract be easier to read if the initial capitals were necessary? Does that lessen the eye-strain? Does that somehow make the hassle of having to read some initial capitals less of a hassle?
Can a writer “inflict [anything] on a contract?” Is a contract a sentient being? Is a contract animate? Dictionary.com defines inflict as 1. to impose something that must be borne or suffered (“to inflict punishment”); 2. to impose (anything unwelcome)(“the regime inflicted burdensome taxes on the people”); and 3. to deal or deliver, as a blow.
Merriam-Webster.com defines inflict as to cause someone to experience or be affected by (something unpleasant or harmful).
Sure, some dictionaries do not cabin their definitions of inflict to the delivery of blows to, or the imposition of something unpleasant upon, homo sapiens or other living beings. To wit, the freedictionary.com defines inflict as 1. to cause (something injurious or harmful) as to a person, group or area (“a storm inflicted widespread damage”).
Nevertheless, I don’t think that I would be the only person to contend that the phrase “inflicting on a contract unnecessary initial capitals” is clumsily crafted. Rather that the reader suffer unnecessary initial caps than clumsily crafted prose.
“It’s accepted that initial capitals make prose harder to read.” Accepted by whom? How do we know? Are those who comprise the set of acceptors the rule-making authority? Why should any deference be accorded to their stylistic tastes?
I suspect you’re a stranger to my work. I suggest that you get a sense of what this blog, and the comments, and my book, are about, then decide whether you wish to contribute in a manner that’s consistent with what you find here.
Dear Nate:
Nice logo.
A good tongue-lashing from Ken clarifies the mind as wonderfully as the knowledge that one is to be hanged in the morning. I agree with him on ‘this agreement’.
Taking as a point of departure that unnecessary nitcapping is obnoxious, I propose for discussion that not even all *defined* terms need be nitcapped.
For example, imagine a definition along these lines: *In this agreement, ‘companion agreements’, with our without initial capital letters, means the other consultant agreements between the company and the other project consultants signed this date and listed in section 4 of this agreement.*
Obviously this works only when the defined term occurs in only the defined sense.
I see a few pros and cons. The biggest pro is less clutter. The biggest con is that defined terms in lower case don’t announce themselves typographically as defined terms at every occurrence. I don’t see that as a problem if the defined term is never used except as defined.
Cordially,
Wright
The way I usually discuss this with counterparties is to say “In the sentence ‘This sentence contains five words’ you wouldn’t dream of capitalizing ‘sentence,’ would you? That’s because ‘this sentence’ means, well, this sentence and no other sentence. ‘This agreement’ means this agreement and no other agreement, so what’s the issue?” Sometimes someone comes back and says they want to define “Agreement” to include all the exhibits and so forth, but then I go on to talk about cross-references and the like–a different subject, to be sure, but closely related. And equally amenable to correcting the brain-dead way in which conventional drafting over-complicates and under-elucidates the story.
I can see where using “this agreement” may introduce ambiguity. Take, for example, the following:
1. Confidentiality. The Mutual Nondisclosure Agreement, dated April 1, 2001, governs the exchange of Confidential Information (as that term is defined in this agreement).
Is this referring to the definition in the NDA, or the definition here? Obviously this would be sloppy drafting, but I’m sure one could think of other examples where it could cause confusion. Why not just build your contract clean from the beginning then to have to think each time whether the term “this agreement” could be construed to mean another agreement referenced earlier in a provision?
Thank you for being perhaps the first person to propose to me an example of ostensible confusion.
In that example, any confusion could be avoided by saying that agreement. Furthermore, whatever is said in this agreement wouldn’t affect what is said in the mutual nondisclosure agreement, so any confusion would be resolved by consulting that agreement. (By the way, why use initial capitals in referring to that agreement? There’s no justification for it.)
You’re sure one could think of other examples? I make a point of assuming nothing. If you can think of other examples, let me know. I haven’t encountered any. And I’ve never encountered any litigation involving any such confusion.
In effect you’re proposing that we inflict on every single contract an otherwise unnecessary defined term, against the remote prospect that a drafter who doesn’t know what they’re doing creates confusion. From the cost-benefit perspective, that doesn’t make sense.
I agree that you don’t need to capitalize “agreement” in most contract. There are certain times when I’ve found it helpful, though.
Take, for example, a Master License Agreement structure that allows for various schedules/exhibits/SOWs to be attached for specific products or projects. In those agreements, I find it useful to define the “main body” portion as the “Master License Agreement,” and the whole thing (main body plus all schedules/exhibits/SOWs) as the “Agreement.”
This way, I can refer to a specific section of the main body by saying “section X of the Master License Agreement.” Whereas if I want to refer to the entire thing (attachments and all), I can say “the Agreement.”
Try as I might, I have never been able to come up with a non-ambiguous way to make the above references without using defined terms. Thoughts?
^ What he said. There are many instances where I draft documents with a complex structure, where it can be necessary to be clear as to which parts of the document (or other documents referenced from that document) are intended to form part of the “Agreement”. I see no clearer way of achieving that than by defining the “Agreement”.
I suspect that I would come up with different solutions, as with Mike’s example. But as I note in my response to Mike, existence of exceptions doesn’t undercut my broader point.
I’m all for exceptions. For example, I cite master agreements as an exception to the notion that there’s no point in saying that attachments are part of the contract.
But that’s a different issue. As regards defined terms, in my master agreements I don’t encounter any problem referring to the contract proper as this agreement and each SoW as an SoW.
I think that’s clearer than your arrangement, with two overlapping variants of the agreement, with no this agreement.
But more broadly, you encounter a context where an exception to the usual arrangement makes sense? Fine. As you note, that’s no reason to inflict the defined term this Agreement on every contract.