Revisiting Use of Words and Digits to Express Numbers

More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons:

First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction.

And second, it violates a cardinal rule of drafting—Thou shalt not state the same thing twice in a contract! Whenever you say the same thing twice, you introduce a potential source of inconsistency.

Even if when you first state a words-and-digits number the words and digits are consistent, they might well become inconsistent in the course of revising a draft. It’s easy to see how that can happen—digits are more eye-catching than words, so in a moment of inattention you might find yourself changing the digits but not the words.

It’s a standard rule of construction that when the words and digits are inconsistent, the words govern. But that rule of construction, like other such rules, is an arbitrary rule that serves to make life easier for judges; what the parties actually intended isn’t taken into account. In fact, given that it’s more likely that any inconsistency is due to a drafter’s changing digits and forgetting to change the words, rather than vice versa, the odds are better than even that in any given instance application of the rule will result in the court’s opting for a meaning that is contrary to what the drafter had intended.

In any event, when words-and-digits inconsistency runs into an arbitrary rule of construction, the result is unhappiness of the sort described in this post on IP Draughts.

So do yourselves a favor—stop using words and digits to express numbers. Instead, use words for whole numbers one through ten, and digits thereafter. Worried that digits are more prone to typographic errors than are words? The solution to that is proofreading, not introducing a possible source of inconsistency.

Someone at my Toronto seminar last week asked, Why bother with words at all? Because in all writing, it’s standard to start with words and switch at some point to digits. (When you switch depends on the kind of writing and what style guide you consult.) As a result, your readers likely would find it odd if you were to use digits for numbers up to ten, as in This agreement will terminate 1 year after the Closing.

By the way, use of words and digits to express numbers is something of a canary in a coal mine. If you’re doing the words-and-digits thing, the odds are that your contracts contain plenty of other suboptimal usages.

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.