“Promises That” and “Promises To”

For the sheer heck of it, let’s look at how the verb promises is used in contracts.

Here are two examples from EDGAR of promises that:

Executive agrees and expressly promises that, during the Prohibited Period, Executive shall not directly or indirectly (i) recruit, solicit or induce any employee, consultant, or independent contractor of the Parent Company or any of its Subsidiaries …

Borrower promises that until the Obligations are fully paid and this Agreement is terminated, it will keep its books and records in a manner satisfactory to Lender …

In each case, promises that is an extraneous bit of throat-clearing that’s tacked on the front of the sentence, before the verb that establishes what category of contract language you’re really dealing with, which in the case of the first example is language of prohibition and in the case of the second is language of obligation. In the first example, an appropriate verb structure is used (shall not). In the second example, shall should have been used instead of will.

For other examples of this sort extraneous frontloading, see this 2014 post.

How about promises to? Table 2 in MSCD chapter 3 contains the example Acme promises to purchase the Shares from Doe, with promises to used inappropriately instead of shall. Here’s a comparable example from EDGAR:

Employee hereby grants and promises to grant to Employer a perpetual, worldwide, paid-up and royalty-free, non-exclusive, and sublicensable right and license …

In this example too shall should have been used instead of promises to, although this example muddies the waters by combining language performance and language of obligation in a way that doesn’t make sense.

But the previous example is the only example of promises to I could find on EDGAR that wasn’t used with the verb pay. Yes, folks, EDGAR is awash with examples of promises to pay. Here are two:

APPLE INC., a California corporation (the “Issuer”), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on February 7, 2020.

For value received, the Regen BioPharma, Inc., a Nevada corporation (the “Company”) hereby absolutely and unconditionally promises to pay to the order of …

This is yet another example of how verb structures are chaotic in traditional contract language. It’s standard to use shall to express obligations, except when the verb that follows is pay, in which case promises to becomes the popular option. Semantically, there’s no reason for that.

I suspect that popularity of promises to pay is attributable to section 3-104 of article 3 (Commercial Paper) of the Uniform Commercial Code, which says that “‘negotiable instrument’ means an unconditional promise or order to pay a fixed amount of money.” It follows that lawyers, ever a literal-minded bunch, are inclined to stick with the verb promises. But 4 Hawkland UCC Series § 3-102:10 notes “the infinite variety in possible phraseology” and simply says that “the language used must be promissory in nature.” So I’m sticking with shall.

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.