The earnest cliché ready, willing, and able occurred in 102 contracts filed on the SEC’s EDGAR system in the past year. That’s not a whole lot, but it’s not nothing either. Here are some examples:
Borrower and Bank recognize and agree that the Origination Fee … is a material inducement for Bank to make the Loan and for having Bank ready, willing and able to fund the Loan in accordance with the terms of this Agreement.
SM Energy shall have delivered (or be ready, willing and able to deliver at Closing) to Buyer the documents and other items required to be delivered by SM Energy under Section 11.3 .
A “brokerage engagement” means an express written or oral contract wherein a client promises to pay the real estate broker valuable consideration or agrees that a real estate broker may receive valuable consideration from another in consideration of the broker producing a seller, buyer, tenant, or landlord ready, willing and able to sell, buy or rent real property or an interest therein.
Anyone object to using prepared instead?
Then there’s stand ready and its variants, which occurs less often:
The obligation of Seller to consummate the Sale on the Closing Date is, at Sellers option, subject to the fulfillment of the following conditions at or prior to the time of the Closing: … Buyer shall have delivered, or shall stand ready to deliver, to Seller such instruments, documents, and certificates as are contemplated by Section 2.3(b).
For these purposes, a “Qualified Marketmaker” means an entity that (x) holds itself out to the public or to the applicable private markets as standing ready in the ordinary course of its business to purchase Claims from customers and sell Claims to customers, in its capacity as a dealer or market maker in any such Claims …
I recommend using instead be prepared and its variants.
And some mad geniuses combine both usages. Be very afraid:
This Agreement and the transactions contemplated hereby may only be terminated on or before the Closing and only: (a) by Seller, if the conditions set forth in Section 7.1 (other than those conditions that, by their nature, are to be satisfied only at the Closing and which conditions Buyer stands ready, willing and able to satisfy) are not satisfied (or waived in writing by Seller) as of March 29, 2013 (the ” Closing Deadline “);
2 thoughts on ““Ready, Willing, and Able””
If a broker’s contract entitles her to a fee when she produces a “ready, willing, and able” buyer, and there’s a wealth of case law defining that phrase, wouldn’t a broker who changes her contracts to call for a fee upon producing a “willing” buyer run the risk that a court would say that by choosing a term other than the “tried and true” phrase, she must have intended another meaning?
I’m not willing to handcuff myself to “tested” contract language. Instead, what best conveys the intended meaning? I’m open to suggestions.