Today I saw the following @matt_levine tweet:
How lawyers say "midnight." http://t.co/2fZJUY9NBa pic.twitter.com/osjP0ItCd5
— Matt Levine (@matt_levine) March 16, 2015
The number of retweets confirms that there’s train-wreck fascination in convoluted lawyer prose.
Midnight is the boundary between the last second of one day and the first second of the next day, so every day has a midnight at each end. There’s a loose convention that midnight on April 8, 2015, will occur at the end of that day, but when the deal goes bad and everyone calls their lawyers, you could get a fight over the meaning of midnight. That’s why it’s best to eliminate that ambiguity.
The parenthetical in the language quoted in the tweet does address the ambiguity inherent in the word midnight by making it clear that the midnight in question falls at the beginning of April 8, 2015. But it does so in a way that MSCD 10.23 describes as “overly subtle”—by specifying that the midnight in question occurs “one minute after 11:59 P.M.” Furthermore, because it also refers simply to “midnight,” the quoted language says the same thing twice. That’s never a good idea.
That’s why I would have said simply midnight at the end of April 7, 2015. (Or midnight at the beginning of April 8, 2015, if you prefer.)
As noted by someone who joined the conversation on Twitter, stating midnight using the 24-hour system (0000) would allow you to avoid ambiguity. But because the 24-hour system isn’t generally used in U.S. contracts, I wouldn’t use it in U.S. contracts.
It would be pointless to state the time as 0001, as suggested by others on Twitter—as 0000 isn’t ambiguous, adding the extra minute accomplishes nothing.
You could instead use 12:01 a.m. to mark a beginning point in time and 11:59 p.m. to mark an ending point in time, but lopping off the first or last minute is too clumsy for me. Neverthless, this approach is routinely used in, for example, contests run by National Public Radio.
Equally pointless and perhaps a little delusional is using 12:00:01 or 11:59:59.
Regarding the related delusion that a day begins at 12:01 a.m., or that one has until 5:01 p.m. to meet a 5:00 p.m. deadline, see this post. In that case, the notion is that a period of time begins or ends one minute later than it actually does. By contrast, this post deals in part with the less problematic notion of shifting a point in time from midnight so as to avoid ambiguity.
Equally, midnight is the boundary between the last hour of one day and the first hour of the next. The margin of uncertainty may be reduced by referring to seconds rather than hours, but the principle is the same.
The unit is irrelevant: all that matters is that midnight is a boundary. And as there’s no uncertainty, it follows that the notion of a margin of uncertainty doesn’t apply, no?
Your comment prompted me to add a new final sentence.
I was referring to the uncertainty in people’s minds, which doesn’t need to follow logic. I agree with your statement of principles.
Uh, regarding that lack of uncertainty: https://www.adamsdrafting.com/a-new-provision-specifying-a-drafting-convention-relating-to-time/.
Unless a drafter makes clear that clock times expressed in hours and minutes are points and not 60-second periods, the possibility of legitimate confusion remains, even with the expressions ‘midnight at the start of (date)’ and ‘midnight at the end of (date)’, since those phrases are often understood as synonyms for numerical clock times.
It is surely not ‘delusional’ to reckon that it’s 2:00 p.m. till it’s 2:01 p.m., so that a deadline of 2:00 p.m. occurs at the *end* of 2:00 p.m. and at the *start* of 2:01 p.m. A Canadian trial court so held and was affirmed on appeal. So it’s the drafter’s job, as ever, to head off possible confusion.
The generic problem is the practice of describing larger periods by using ‘bookends’ that are smaller periods, a practice guaranteed to generate uncertainty.
Generic solutions are possible, but if we limit ourselves to the issue of clock times, including midnight and noon, one fix is to use an interpretive rule (‘drafting convention’) along these lines (wording not sacred):
‘In this agreement, clock times in hours and minutes are points, not periods. A clock time refers to the point 60 seconds before the next minute. Midnight at the end of any date refers to the point at the end of the day. Midnight at the start of any date refers to the point at the start of the day. Noon on any date refers to the midpoint of the day.’
Oh, all right, you win: https://www.adamsdrafting.com/a-new-provision-specifying-a-drafting-convention-relating-to-time/.