Revisiting Conditional Clause Verb Structures

It’s time for me to revisit what verb tense to use in a conditional clause. It’s OK, no need to thank me!

The following examples fall into two groups, those that relate to a moment in time and those that relate to a period of time. (In the examples, the conditional clause is the part beginning with If; the matrix clause is what follows.) Here’s what the examples show: With respect to a moment in time, the present perfect works only with language of discretion; with respect to a period in time, the simple present works only when the preceding period is assessed from a point in time. But the real message is that the simple present always works, so always use the simple present!

And go to the end of this post for the moral of this story.

Moment in Time

In this first example, the simple present works because the obligation in the matrix clause applies the moment Investco receives the notice. The present perfect doesn’t work: it suggests a notice might be received over an indeterminate period that ends when the obligation applies.

  • If Investco receives a Violation Notice, it shall promptly notify Widgetco.
  • If Investco has received a Violation Notice, it shall promptly notify Widgetco.

In this second example, the simple present works because the language of policy in the matrix clause applies the moment Jones is no longer employed. The present perfect doesn’t work: it suggests employment might terminate at some point over an indeterminate period that ends when the language of policy applies.

  • If Jones ceases to be employed by the Company, the Option will terminate.
  • If Jones has ceased to be employed by the Company, the Option will terminate.

In this third example, the simple present works because the right to transfer expressed in the matrix clause arises when the notice is received. And the present perfect works because any transfer would take place sometime after the notice was received.

  • If Acme receives a Notice of Consent, it may transfer the Shares.
  • If Acme has received a Notice of Consent, it may transfer the Shares.

Period of Time

In this fourth example, the present tense works because assets might be destroyed or damaged at any point during the period before closing. The present perfect doesn’t work: the state of the assets isn’t assessed from a point in time.

  • If any Assets are destroyed or damaged during the Preclosing Period, then after Closing Acme shall indemnify Widgetco for that damage.
  • If any Assets have been destroyed or damaged during the Preclosing Period, then after Closing Acme shall indemnify Widgetco for that damage.

In this fifth example, the present tense works because assets might be destroyed or damaged at any point during the period before closing. The present perfect doesn’t work: the state of the assets isn’t assessed from a point in time.

  • If any Assets are destroyed or damaged before Closing, then after Closing Acme will be liable to Widgetco for that damage.
  • If any Assets have been destroyed or damaged before Closing, then after Closing Acme will be liable to Widgetco for that damage.

In this sixth example, the present tense works because it refers to the status of assets at closing. The present perfect works because it refers to past destruction or damages assessed from a point in time.

  • If at Closing Acme determines that any Assets are destroyed or damaged, the after Closing Acme shall indemnify Widgetco for that damage.
  • If at Closing Acme determines that any Assets have been destroyed or damaged, then after Closing Acme shall indemnify Widgetco for that damage.

Why This Matters

The fifth example is based on the language at issue in the dispute described in this May 2020 blog post; the fourth and sixth examples are variants.

The court based its decision on use of the simple present instead of the present perfectin the conditional clause. But by my reckoning, the simple present works and the perfect present doesn’t.

Furthermore, nothing in the fifth example suggests that one can determine, simply based on what tense is used, whether the sentence relates to the period before signing.

So bad things happen when courts make stuff up about verb structures.

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.