Referring to FedEx and its Competitors

[Updated 7 February 2021]

A standard way of giving notice under a contract is by overnight delivery by FedEx or one of its competitors. To articulate this notion, many drafters use the word courier, with varying degrees of specificity. For example, the phrase nationally recognized overnight courier occurs in 204 contracts filed on Edgar last month as Exhibit 10 material contracts. Another word used, but much less frequently, is carrier—the phrase nationally recognized overnight carrier occurs in only 12 contracts filed on Edgar last month.

I’ve pondered the merits of courier and carrier.  The online dictionaries suggests that although courier does mean a person or company that delivers documents or small and valuable packages by hand, it also means a messenger who carrys diplomatic or other official documents, or a smuggler or spy carrying something secret or illicit. And the latter meanings are the ones that come to my mind first—when I think of courier, I think of Pheidippides and his ilk.

As for carrier, for our purposes it means a person or company that deals in the transport of passengers or goods. So it doesn’t convey any sense of urgency, but I suppose you’d get that with overnight. And it isn’t limited to goods.

So courier and carrier are OK, but they’re not great. I propose an alternative: transportation company, with tracking. We don’t have to specify overnight delivery: it’s up to the sender to decide how quickly it wants the notice to be delivered. And we don’t need nationally-recognized or reputable or other such clutter: if you can track your delivery, that’s sufficient.

If you want to deliver a tangible copy some other way, knock yourself out: walk the envelope over yourself, get your cousin Gertrude to drive it over, hire a bike messenger, pay someone to fly around the world with a briefcase chained to their wrist—whatever. But because tracking isn’t offered, you’ll need to get someone at the recipient to sign for it. For more on that, see this 2021 post on delivery by hand.

Mail? I don’t think so. I think we want more certainty than regular mail offers, and we don’t want the inconvenience of certified mail.

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.