“Prima Facie”

Note use of the Latinism prima facie in following provisions, which I extracted from EDGAR without anaesthesia:

The Finnvera Facility Agent shall maintain in its books at the Finnvera Facility Agency Branch a record of the Term Loan attesting as to the total of the Borrower’s indebtedness to the Tranche A Lenders. These accounts or registers shall constitute, in the absence of manifest error, prima facie proof of the total amount of the indebtedness of the Borrower to the Tranche A Lenders, of the date of any Tranche A Advance made to the Borrower and of the total of all amounts paid by the Borrower from time to time with respect to principal and interest owing on the Term Loan and the fees and other sums payable in connection with the Finnvera Term Facility.

The Depositor and any director, officer, employee or agent thereof may reasonably rely in good faith on the advice of counsel on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Depositor shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be incidental to its obligations under this Agreement and that in its opinion may involve it in any expense or liability.

… and the Trustee and the U.S. Trustee may call for, and be at liberty to accept, a certificate signed by an authorised signatory of the Issuer, as to any fact or matter or the expediency of any act prima facie within the knowledge of the Issuer as sufficient evidence thereof, and the Trustee and the U.S. Trustee shall not be bound in any such case to call for further evidence or be responsible for any liability that may be occasioned by its failing to do so.

Here’s the Black’s Law Dictionary definition of prima facie:

prima facie (prI-mə fay-shə or fay-shee) adj. (18c) Sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it make later be proved to be untrue <a prima facie showing>.

Use of prima facie in contracts seems like misguided dabbling in civil procedure. Anyone want to explain why one couldn’t simply delete each instance of prima facie?

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.

2 thoughts on ““Prima Facie””

  1. The first instance you cite can safely be deleted. The second and third might usefully be replaced by “apparently,” since whether something is properly executed or within somebody’s knowledge can be disproved.

  2. If you delete ‘prima facie’ from the first example, you open the possible interpretation that, in the absence of manifest error, the accounts or registers constitute *irrebuttable* proof. So deletion without more arguably changes the meaning and runs the risk of disputes.

    Ditto the second example. An expertly forged document might be ‘prima facie’ properly executed but not *in fact* properly executed.

    Third example ditto. Simple deletion arguably changes the meaning from ‘any act prima facie within the knowledge’ to ‘any act *in fact* within the knowledge’.

    First pass at a bottom line:

    (1) If ‘prima facie’ is to be banished as damned Latin, it can’t just be deleted. It must be replaced (in other words, it isn’t intrinsically redundant);

    (2) No English word or phrase adequately replaces it in all contexts;

    (3) Possibly drafters should retain ‘prima facie’ as a compact way to express several different ideas, each of which otherwise takes many words. Before you throw that pie, Ken, remember I said ‘possibly’.


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