“Primarily”

At last Friday’s CLE session in Boise, I sat in on a lunchtime presentation by Ken Howell, of the law firm Hawley Troxell, on recent actions by the Idaho legislature that have a bearing on business. Obviously, I wasn’t in the target audience, but Ken caught my attention when he mentioned how, in connection with some tax legislation, the legislature had defined the word “primarily.”

Hmm. “Primarily.” Here’s how it’s used in some contracts on EDGAR:

Eligible Collateral Obligation means, on any Measurement Date, each Collateral Obligation that satisfies the following conditions … : … (x) the Related Security for such Collateral Obligation is primarily located in the United States.

“Real Estate Loan” means any Obligor Loan for which the underlying Related Property consists primarily of commercial real estate owned by the Obligor.

Seller represents that the Seller Knowledge Individual is the employee of Seller who is primarily responsible for transactions involving the Property and an appropriate employee of Seller to be the Seller Knowledge Individual.

In the event of a Taking of the following: … a material portion the total parking areas primarily serving the Premises, which, in the reasonable, good faith determination of Tenant shall have a material adverse effect on Tenants business at the Premises …

The Borrower is primarily engaged in the business of purchasing, owning, operating, leasing and managing retail properties.

Here are some questions that come to mind:

  • What quantum do you need to reach primarily? More than 50%? Something else?
  • What yardstick do you use to measure primarily? In the last of the above examples, is “primarily” measured in terms of gross annual revenue? Number of employees? Something else?
  • In the third example, does “primarily responsible” refer to (1) the share of that employee’s total activities represented by that employee’s activities devoted to transactions involving the Property or (2) the share of activities of all employees devoted to transactions involving the Property represented by that employee’s activities devoted to transactions involving the Property?
  • I wouldn’t use primarily liable as the adjectival equivalent of primary liability, as it could result in reader miscues, with the reader thinking, even if only momentarily, that Acme might be primarily liable and secondarily something else.

So I’d be careful when using primarily.

 

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.