Revisiting Absence of Prohibition

A benefit of this blog is that I get to try out new ideas. Often enough, I end up revisiting those ideas. That can make the original post out of date, but that’s a blogging fact of life. (I’m not disciplined enough to always put a link in the original post.)

Here’s an example for you. In this post from last month I considered the phrase Nothing in this agreement prevents X from [doing something]. We’ll, here’s my new take on that phrase, but in a broader context:

It can sometimes be helpful to express absence of prohibition in a contract: This agreement does not prohibit Acme from … . (A slightly less straightforward alternative is Nothing in this agreement prohibits Acme from … .) You could use prevent instead of prohibit, but that could express a broader meaning—an element of a transaction might have the effect of preventing conduct that isn’t prohibited by the contract. And you could instead use may, but if in the absence of a contract Acme would be able to do whatever it is, it would be to Acme’s advantage to avoid suggesting that its ability to so conduct itself is a function of the contract. (Absence of prohibition doesn’t equal discretion, but as a practical matter the two are comparable, and it’s more convenient to place this discussion with language of discretion instead of language of prohibition.)

But I have a question for you. Expressing absence of prohibition is analogous to expressing absence of obligation. To express the latter, I recommend using is not required to. But to be consistent with that approach for purposes of expressing absence of prohibition, you would have to say is not prohibited from. Conversely, to express absence of obligation in a manner consistent with what I recommended in this post, you would have to say This agreement does not require Acme to … .

In other words, here are the alternatives:

  1. Absence of obligation, is not required to; absence of prohibition, This agreement does not prohibit Acme from  … .
  2. Absence of obligation, is not required to; absence of prohibition, is not prohibited from  … .
  3. Absence of obligation, This agreement does not require Acme to  … ; absence of prohibition, This agreement does not prohibit Acme from  … .

The least appealing to me is option 3. MSCD has long recommended is not required to to express absence of obligation, so I’d prefer not to change that unless I have a good reason for doing so.

The only rationale I could offer for option 1 is that is not required to is more colloquial than is not prohibited from. I’m not sure that’s compelling. I’m leaning toward option 2.

What do you think?

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.

27 thoughts on “Revisiting Absence of Prohibition”

  1. Given these three choices, I like #3 best because it’s not in the passive voice and more importantly it identifies who (‘this agreement’) is not requiring or not prohibiting the thing.

    The active-voice versions make clear that while extracontractual authority (background law, another contract) may require or prohibit the thing, this contract doesn’t.

    The passive-voice versions, by omitting any by-agent, leave open the possibility that the sentence means that ‘the contract’ is guaranteeing that no party *or other entity* requires or prohibits the thing: ‘The Employee is not prohibited from driving faster than 80 kph’ is ambiguous.

    On another head, I’m unhappy with slotting lack of duty and absence of prohibition in language of discretion, which neither is, convenience be dashed.

    I’d argue that both are forms of language of policy, like definitions and internal rules of interpretation, as if the wording were, ‘Neither this agreement nor any part of it is to be construed to include any requirement that Acme [do the thing] [not do the thing]’.

    That phrasing is sub-par, but it highlights the policy nature of the idea being put into words.

    • I don’t think it’s necessary to make it clear that absence of prohibition is achieved exclusively by agreement of the parties. After all, nothing about Acme may says that it expresses only agreement of the parties as opposed to some extracontractual mechanism. And nothing about language of policy, for example The Option Price will increase to $5, says that it’s achieved through the contract; saying so in the contract is all that’s required. So tacking on This agreement does not just for this context seems cumbersome.

      The analogy with may does it for me (I think). But you’d have to be oblivious to get into trouble over omission of This agreement does not.

      Language of policy is for ground rules, it’s not for conduct by the parties. You might as well say that Acme is obligated to should be language of policy.

      • Dear Ken,

        I think you’ve persuaded me that the passive-with-no-by-agent form of statements of lack of obligation and lack of prohibition is as harmless as the implicit passivity of ‘shall’, ‘shall not’, and ‘may’.

        Therefore, the choice among the three options should rest on other considerations. Nice argumentation, nice analogy; I bow.

        On your point that statements of lack of prohibition or obligation aren’t language of policy, I’m not (yet) persuaded, but let’s leave that for another day.

        You didn’t address my claim that whatever category language of lack of obligation and prohibition belong to, it isn’t language of discretion.

        I’m unsure whether you have ever explicitly claimed that they do, only that ‘it’s more convenient to place this discussion with language of discretion instead of language of prohibition’ or that lack of prohibition and lack of obligation are ‘comparable’ to language of discretion, in that none of the three impose obligations.

        I respectfully suggest that that won’t do, especially since you have gone on record saying that language of no category of contract language has no place in contracts.

        You seem to suggest that if lack of prohibition isn’t language of discretion, it would be language of prohibition. I don’t think that would fly without altering the definition of language of prohibition, which you could do.

        But if you did that, consistency would require yanking language of lack of obligation from its odd perch near language of discretion and placing it in language of obligation under a revised definition of that category. What say you?

        Shifting gears to one of Mr Cremata’s points, a heartbreaking saying is that ‘A gentleman is someone who never gives offence unintentionally’. I have never qualified, having given unintentional offence in writing again and again over the years. So I’ve no advice except ‘Be of good cheer; you can’t win’.


        • The list of hard-core categories-of-contract-language types is a short one: you, me, and … and …. No, it’s just you and me!

          I’m gratified you found some merit to my argument.

          Regarding the right place to park absence of obligation and absence of prohibition, my concerns are practical. I don’t think they’re substantial enough to make them a category of their own. I remain OK with parking “You don’t have to do it” and “We’re not stopping you from doing it” with “Go ahead and do it if you want.” The unifying theme is, well, discretion.

  2. I actually like #3.

    It’s the most straightforward way to state what you’re essentially trying to say, which is: “The parties intend that X is okay. If there’s anything anywhere else in this agreement that implies, or could be interpreted to suggest, that X is not okay, you’re reading it wrong. X is okay.”

    When you get rid of the “This agreement…” portion, you sort of lose that “this sentence trumps everything else in the agreement” connotation.

    • I suggest you’re mistaken. *trying not to sound harsh* Even A. Wright Burke wasn’t concerned about application of the shortened version to the contract. He was worried about something else: that the shortened version could be understood as referring to the world outside the contract as well.

      • I wasn’t responding to A. Wright Burke’s comment. I was making a completely different point.

        You started with the ubiquitous “Nothing in this agreement…,” which I think has a very specific connotation, and where you ended up (in #1 and #2) completely loses that connotation. That’s why I prefer #3.

        You might not find that reasoning compelling, but I’m not sure how you can say it’s “mistaken.” (Nor why you’d be afraid of sounding “harsh” by doing so. That came off as a bit condescending to be perfectly honest.)

        • I didn’t suggest that you were responding to A. Wright Burke’s comment. I mentioned his comment simply to point out that he didn’t share your concern.

          I think your reasoning is mistaken, so I said so, cushioning it with “I suggest that”. Then, to signal that I was doing my best not to sound dismissive, I added the semi-jokey phrase-in-asterisks bit. So a couple days after being told that I’m “aggressive,” evidently I’ve swung 180 degrees to “condescending.” My conclusion? For readers and writers, tone in online exchanges is a tough thing to get right.

          • Haha fair enough. I’ll mark that down to over-sensitivity on my part.

            For what it’s worth, I’ve never found your tone aggressive. Blunt, but not aggressive.

            Thanks for responding. And keep fighting the good fight :)

  3. Ken:

    I also like #3.

    I agree with the first half of AWB’s comment — that the passive voice leaves room for mischief.

    (An aside to AWB: I dislike any phrasing along the lines of “this agreement is not to be construed to blah-de-blah.” It is too indirect to me. Some courts would say something like, “I’m not construing anything. That’s what it says. The “construing” part just seems like excess verbiage to me. If the contract doesn’t do something, just say that it doesn’t do that.)

    I don’t like language of discretion to act as language of non-prohibition because there could be some external prohibition. There’s a difference between saying, “I give you permission to do X or Y” and saying, “I’m not telling you not to do X or Y — it’s all on you.” The first implies an endorsement, which matters to us lawyers.

    The difference between #2 and #3 is that #2 leaves open the possibility that you are contractually negating prohibitions other than ones in the contract. For example, suppose that the contract involves the entry on to third-party land to perform services. Saying “this agreement does not prohibit Vendor from entering onto the property of Customer’s clients” is different in implication from “Vendor is not prohibited from entering onto the property of Customer’s clients.” If Customer is a utility, for example, the Customer may have utility easements that could make a broad reading reasonable.

    I don’t see any harm arising from saying, “This agreement does not prohibit …”


    • Dear Chris,

      Concerning your aside to me, I share your dislike of ‘is to be construed’, and maybe for the same reason you do: it tries to tell courts what to do, which gets their backs up.

      BAD: ‘This agreement concerns Parcel A and is not to be construed as concerning Parcel B’.

      BETTER: ‘This agreement concerns parcel A and not parcel B’. More direct, as you say, and waves no red flags before judicial bulls.

      I used the ‘construed’ formulation only to highlight the idea that statements of lack of prohibition and lack of obligation are instances of language of policy in that they deal with the scope of the contract and describe what conduct the contract does not purport to regulate.

      ‘This agreement does not prohibit Acme from’ is seven words; ‘Acme is not prohibited from’ is five words. If the passive in the shorter text is harmless, a drafter should favor the conciser text, so I do, although ‘cumbersome’ is a harsh word to throw at the seven-word version.


    • Regarding your utility hypothetical, I don’t think you’d address the issue that way. You’d probably say something like “The Vendor is responsible for obtaining all approvals,” etc. I don’t see this as a real issue.

      Regarding is not to be construed, you’ll love my article in Judicature with Vice-Chancellor Laster of the Delaware Chancery Court on exactly that subject (and related topics). It’s coming out late August.

      • Ken:

        I could come up with a hundred hypotheticals, and you could come up with a hundred ways of dealing with them using language that’s currently off-screen.
        The issue is that the passive voice is ambiguous as to actor and, in a contract that is insufficient in that off-screen language, motivated interpreters will exploit that ambiguity. That’s one of the biggest reasons to avoid ambiguity. What is the harm in saying, “this agreement does not prohibit that”? If the issue is important enough to disclaim the effect, isn’t is also important enough to avoid the ambiguity? By including the sentence at all, you’ve decided to include probably a minimum of a dozen words, and more likely a score. What’s the harm of two more?

        What is your objection to #3? So far, you have simply said that you find it unappealing, that it is cumbersome (which I think was the reason you find it unappealing), and you’d prefer to stick with what’s in MSCD. ( What, Adams? AM I sensing inertia? )
        It seems like your core objection is that the agreement ought not have to refer to itself to establish a rule. Here, however, it isn’t creating a rule. It is disclaiming an effect. And that disclaimer is related to an effect that the agreement could have (but does not) — it isn’t more broad than that.


        • You’ll see in my exchange with A. Wright Burke what my objection is. Basically, it’s implicit in other categories-of-contract-language verb structures that they’re a creation of the contract and don’t reflect some external reality, so it’s pointless to get worried about that issue just for these relatively marginal verb structures.

          I managed to convince A. Wright Burke, a notoriously hard case, so that makes me more comfortable with my approach.

  4. A few comments.

    1. The only semantic difference that I see between “X is not required prohibited…” and “This contract does not prohibit X…” is the potential ambiguity of the passive-voice variant. I tend to agree with Ken that as a practical matter, that’s not worth worrying about. OTOH, one could argue that it’s best not to run even a minimal risk of misinterpretation given that there’s so little downside to using the active-voice variant.

    2. For Ken, the downside is that using active voice here would mess up the consistency of his recommendations for the various categories of contract language he has set up. That’s a judgment call; my only opinion about it is that consistency-for-consistency’s-sake shouldn’t take priority over choosing a construction that is otherwise preferable.

    I guess one could be concerned about the risk that an opponent would argue that a difference in form should be a signal of a difference in meaning, but as a practical matter that’s probably as small a risk as the use of passive in “X is not prohibited…” Of course, both risks could be avoided by using active voice for both absence of obligation and absence of prohibition.

    3. Not directly relevant here, but worth keeping in mind: The way that negation works in language doesn’t always follow the rules of logic, and negated statements are often understood as communicating a stronger assertion than what their literal language would require.

    For example, the narrow semantic content of “I don’t think Trump knows what he’s doing” is merely the denial of having a belief that Trump knows what he’s doing; it doesn’t assert that I think he *doesn’t* know what he’s doing. But the statement would probably be understood as making the stronger statement.

    • Thank you, Neal; that pretty much sums up the state of play. I expect that in MSCD4 I’ll describe both approaches, in case anyone thinks this is more of an issue than I do.

      Regarding your negation point, I tackle that in MSCD, and it always gives me a headache.

  5. Inasmuch as every contract says at the very beginning, “the parties agree as follows:” then you can take it as read that every section notionally begins with “the parties agree that:”–which is to say that the parties are stating their agreement. It seems redundant therefore to say “this agreement does [or does not do] something just to negate an impression that what the parties are agreeing doesn’t affect what some outside force may require or prevent. An agreement between A and B isn’t saying anything about what Mama don’ ‘low, only about what A and B require, allow, or don’t. So saying that A or B is not required to do x or is not prohibited from doing x is only and inherently saying that the agreement of the parties doesn’t require or prohibit x.

    • Obviously, I agree with you. But a contract can in fact address what Mama don’ ‘low. In theory, Acme is not required to drink the Kool-Aid could be construed not as a variant of language of discretion (which is where I’ve elected to park it) but as a statement of fact that includes circumstances outside the contract. But it would be bizarre to word a statement of fact like that, instead of saying, for example, Widgetco acknowledges that Acme is not required by law or by contract to drink the Kool-Aid.

      So I end up in the same place as you, but I recognize the potential for confusion, although I don’t regard it as significant enough to justify the wordier formulation.

      • Not to belabor a deceased equine, but one normally sees statements of (current) fact in a contract as either what entre nous we can call representations, when the intent is for the stating party to be liable for it (“Acme states that it is not required to drink the Kool-Aid”) or as an acknowledgment by the party who could be prejudiced by the facts underlying the statement (“Widgetco acknowledges that Acme is not required to drink the Kool-Aid”). But in the context where both parties are in effect stating that outside forces may (shrug) impinge on their conduct but there’s nothing in the contract that affects that, the formulations we’ve been discussing seem more appropriate.

  6. Depending on the activity in question, I would think that “Acme may…” is a much better alternative. If it is a sales agreement, and Acme is going to be a distributor for a company and it is not exclusive, instead of saying “Nothing in this Agreement prohibits Acme from selling products of Manufacturer’s competitors” why not “Acme may sell products of Manufacturer’s competitors.”

    • A good reason not to use language of discretion to express lack of prohibition is that expressions of lack of prohibition don’t grant discretion. But now the choice is between ‘classic’ language of discretion (‘may’) and ‘variant’ language of discretion (‘is not prohibited from’).

      For some reason, rereading your comment made me notice 2 things:

      (1) The slight difference between ‘This agreement does not prohibit’ and ‘Nothing in this agreement prohibits’. Whole vs. part: should one wear a belt and braces and say ‘Neither this agreement nor anything in it prohibits’? (My answer: No! Use none of the three forms.)

      (2) The slightly anthropomorphic feel to what ‘this agreement’ does and doesn’t do. I guess anthropomorphism is sometimes unavoidable, but here using the passive (‘Acme is not prohibited’) avoids it, so chalk up one for the passive voice.

  7. Ken, on 2/6/2012 you blogged that you thought “is not obligated to” is preferable to “is not required to.” When did you change your mind? Just curious.

  8. A related issue that I see frequently is in an NDA where the drafter includes language such as: “Nothing in this Agreement shall prohibit MegaCorp from developing or marketing products that may be competitive with those of StartupCo.” I always add language like “So long as the other terms of this Agreement are observed, MegaCorp may…” I never get pushback, but that’s a potential trap for the unwary because the language as drafted could be read to negate the explicit confidentiality undertakings in the most sensitive, competitive areas.


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