“Procure” (Focusing on How Australian Drafters Use the Word)

“Procurement” is a standard business term. I refers to a company’s acquisition of goods or services, and the department that handles such matters is commonly referred to simply as “Procurement.”

But the verb procure is a slightly different matter. It’s a formal word for get. As noted in Garner’s Dictionary of Legal Usage, it’s even more formal than obtain. I suspect that guys in Procurement rarely use procure.

Of course, your average drafter isn’t put off by formality, so you see procure quite a lot in contracts. It occurs in 1,853 contracts filed on the SEC’s Edgar system in the past six months.

But in addition to use of procure to mean “get,” those contracts reflect another use of the word, and it’s that usage that I’m interested in. It’s procure followed by a that-clause or by an abstract noun, with procure meaning “cause.”

Drafters from Commonwealth countries are fond of this use of procure. (My brief search on Edgar found it only in contracts relating to operations outside the U.S.)

In particular, this use of procure occurs frequently in the publicly available Australian contracts that I’ve been reviewing in advance of my upcoming seminars in Australia. Here are examples of procure plus that-clause drawn from one of those Australian contracts (emphasis added):

The parties agree to use all reasonable endeavours to procure that New Lion will perform its obligations under the Lion Scheme and the AuSelect Scheme upon and subject to the terms of this document.

The parties will procure that … New Lion will provide the AuSelect Scheme Consideration to each AuSelect Scheme Participant on the Implementation Date in accordance with the requirements of this agreement, the AuSelect Scheme and the New Lion Deed Poll.

The parties must procure that New Lion appoints Ernst & Young as its company auditor on or before Implementation.

And here are some examples of procure plus abstract noun from another Australian contract (emphasis added):

CPPIB will pay (or procure the payment of) 70% of the Investor Monitoring Costs …

… CPPIB will use its best endeavours to procure the provision to the relevant proposed transferees of additional information specific to … .

The Company will … procure the preparation by the Service Provider … of a valuation in accordance with this clause 12.5 … .

I find nothing to recommend either variant of this usage, as it appears archaic and bears no resemblance to use of procure in standard English, even a stuffy version of standard English. I suggest that using instead cause would represent a big improvement.

And don’t use cause with an abstract noun, unless you have an urge to sound bureaucratic. Use it instead with a verb, so as to convey the same meaning more clearly and succinctly.

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.