On “This Agreement” and Sweating the Small Stuff

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.

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.