While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement:
Similarly, there should never be any objection to “representations” being made to the best of the knowledge of a party (as opposed to “to the knowledge” of a party, a phrase that is at best ambiguous and at worst contrary to what appears to be its generally accepted meaning).
That happens to be diametrically opposed to my own view. Here’s what I said in this April 2007 blog post:
But I recommend that in phrasing a knowledge qualification you not refer to the best of someone’s knowledge. It adds nothing, because to the best of Acme’s knowledge means exactly the same thing as to Acme’s knowledge.
In this context, as in the phrase best efforts, the word best constitutes rhetorical emphasis. In general conversation, my adding the best of when attesting to my knowledge of a given matter perhaps represents my way of according my assertion an extra measure of importance. This sort of rhetorical emphasis has no place in the limited and stylized prose of contracts.
Furthermore, adding the best of exacts a cost. For one thing, it adds three useless words, and unless you prune useless words whenever you see them, they soon add up. But more perniciously, using the best of could lead a reader—perhaps a judge!—to assume incorrectly that it implies some sort of heightened level of knowledge, perhaps involving a duty to investigate.
When I encounter conflicting views of this sort, I feel bad for the nonspecialist reader. You consult a treatise when you don’t have the time or inclination to master the subject in question. Necessarily you’re relying on it to be accurate, and you’re not in a position sort out what makes sense from what doesn’t, or to referee disagreements with other commentators.
The only way to improve any body of knowledge is through the marketplace of ideas. Two commentators differ on a given issue? Have them thrash it out—may the best idea win! It does no good to tiptoe around a competing idea for fear of offending anyone. That’s the spirit behind this and a number of other recent posts. I do my best to be respectful; if I fall short, let me know.
6 thoughts on “Revisiting “To the Best of Its Knowledge” (Plus Thoughts on the Marketplace of Ideas)”
I agree with Ken.
One more thought: I wonder whether “to the best of Acme’s knowledge” is in fact a subset of “Acme’s knowledge”. That is, does Acme have some knowledge out there, of a less-than-best nature (e.g. known to some but not to others), in which there lies hidden a dark secret…? If so, I would wish to avoid any references to “best of”, so as to get the full scope of the representation.
Simon: I allude to that notion in the last sentence of the extract from my April 2007 blog post. No reasonable reader could derive that meaning, but there are plenty of unreasonable readers out there, so why risk it? Ken
Ken, frankly, yes. It is noticeable that there have been very few responses to your recent posts. I think people have been put off from responding, in case they get their head bitten off.
On “best of knowledge”, I prefer your views to those of Lorne & Bryan.
Best of knowledge may well imply a duty to investigate. But (at least in England) it probably isn’t safe to assume the converse – that if you just say “to your knowledge”, there is no duty to investigate. I would use a phrase such as “as far as X is aware (but without having conducted any searches or investigations)…”
This is another area where “magic wording” is used to reflect court decisions.
On a separate point, I don’t like the ambiguity of “to X’s knowledge” as it could mean “X is promising that he has knowledge of…”
No, I haven’t checked what MSCD says on these points.
I would also like to suggest that if there is to be an open marketplace of ideas, the moderator should step back a little, and let the ideas flow. At present it feels like making submissions to a judge, who rules for or against.
I tend to agree with Mark’s line of thinking, perhaps because South African law is, to an extent, influenced by English law.
I believe that in using “to the best of X’s knowledge”, many drafters are attempting to express the notion that X has taken the best steps possible to ensure that his/her knowledge is correct. If this belief were incorrect, then using “the best of” is indeed rhetorical and possibly even meaningless.
If my belief is correct, then drafters are not achieving what they are attempting to achieve because the words “the best of” have no connection to the concept of having taken any steps (best or otherwise) to ensure the correctness of X’s knowledge. That being the case, I suggest the following:
“To X’s knowledge, X having taken all reasonable steps to ascertain the correctness thereof, …”
Depending on the party the drafter is representing, he/she might want to play around with “all reasonable”, substituting it with “reasonable” or “all”.
Adam: I agree that anyone using to the best of X’s knowledge to imply some sort of extra diligence is going about things the wrong way. Ken