Revisiting How to Express Termination with Prior Notice

I love it when after writing about a usage and describing it as awkward, I’m able to demonstrate that it’s not only awkward, it can also lead to fights. Today’s example of that is my December 2015 post about how to express termination with prior notice (here).

Today a reader emailed me as follows:

Suppose a termination provision of a contract reads, “After August 1, 2016, either party may terminate this Agreement, without cause, upon 180 days advance written notice to the other party.” Thus, would the earliest that a party is able to terminate the contract be:

(A) on August 1, 2016 (thereby providing the notice on February 3, 2016); or

(B) on January 28, 2017 (thereby providing the notice on August 1, 2016).

Interesting question! As discussed in my post, it’s conventional to refer to termination upon giving notice, which suggests that you’re terminating when you give notice. By that standard, under the provision cited by my reader you couldn’t terminate before you send the notice. On the other hand, as a matter of logic, termination doesn’t happen when you give notice—it happens 180 later. So I say it’s unclear what a court would say if it were called on to decide the earliest you could terminate.

This example involves awkwardness morphing into something that could lead to a dispute. Following the approach recommended in my December 2015 post would yield the following alternative:

If after [August 1, 2016,] [January 28, 2017,] either party notifies the other that it wants to terminate this agreement in accordance with this section X, this agreement will terminate at midnight at the end of the 180th day after the day the other party receives that notice.

It allows you to specify clearly which meaning you have in mind. No confusion, no possibility of a dispute.

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.