Two recent exchanges have led me to consider that when it comes to seeking simplicity in the language of business contracts, one can reach a point of diminishing returns.
“In Accordance With”
A couple of weeks ago, a reader mentioned in an email to me that he prefers as stated in over in accordance with, as being less legalistic and shorter.
I had contemplated including in this post a few examples of each usage for your delectation, but instead here’s a random example from EDGAR that features both usages (emphasis added):
The Subadvisor will provide the services under this Agreement in accordance with the Series’ investment objective or objectives, policies and restrictions as stated in the Trust’s Registration Statement ….
How both usages are employed in this example is consistent with other examples I looked at. In other words, in accordance with conveys the meaning “in a way that is consistent with,” whereas as stated in is used to bring within the scope of the contract specific information contained in another document.
So I’m inclined to stick with in accordance with. Yes, it’s not the simplest-sounding usage, but I can’t think of any alternative that conveys the same meaning more simply.
“Breach”
Around the same time, on Twitter someone asked me which I preferred, breach or violate. I replied by noting that in MSCD 3.140 I say “Refer to breach of an obligation—it’s more sober than violation.” That prompted someone else to suggest that although she couldn’t offer any alternatives, she finds breach less than ideal. She also noted that it’s not used in consumer documents.
I can’t think of anything simpler than breach, a good Anglo-Saxon word. I can’t imagine that anyone would prefer saying fail to comply with. Conceivably you could use its cognate, break, in that one refers to breaking a promise. But it would be unorthodox to refer to breaking an obligation, and doing so would offer slim benefits.
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So although I’m always prepared to reconsider, I find myself inclined to stick with both in accordance with and breach. It’s primarily that I can’t think of anything simpler, but it’s also relevant that I can’t muster much enthusiasm for scouring the thesaurus for alternatives, given all the more glaringly problematic contract language out there.
1/ Anent your inability to muster enthusiasm to find the shortest word that does the job when there are bigger fish to fry: ‘Never give in, never give in, never, never, never–in nothing, great or small, large or petty – never give in except to convictions of honour and good sense’.
2/ ‘In accordance with’: usually ‘under’ is the better choice, but you’ve a chunk of prose from the ‘great manure lagoon’ that uses, cheek by jowl in one sentence, (a) ‘under’ [this agreement]; (b) ‘in accordance with’ [the objectives]; and (c) ‘as stated in’ [the Statement]. Avoiding three successive ‘unders’ surely excuses what would otherwise be the vice of elegant variation.
3/ But wouldn’t it be better to get rid of all three loose connecting phrases by just tightening up the provision, possibly along these lines: ‘In providing its services, the Subadvisor shall follow the Series’ investment objectives, policies, and restrictions stated in the Trust’s Registration Statement…’?
It’s not a matter of my throwing in the towel, more a matter of suggesting that you reach a point after which you can’t get any simpler, and these might be two examples of that.
How about “and will follow” instead of “IAW” in the above?