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 That can make the original post out of date, but that’s a blogging fact of life.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.