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.
Ken:
A minor point, but using both numbers and words means having to either (a) use incorrect grammar, or (b) re-write the sentence. For example, a correctly written sentence might be:
“After ABC delivers the 30-day notice, it may also request an audit.”
With numbers and words, it usually and incorrectly becomes:
“After ABC delivers the thirty (30) day notice, it may also request an audit.”
Correctly, that would have to be:
“After ABC delivers the thirty- (30-) day notice, it may also request an audit.”
That looks stupid!
Finally, one could also re-write the sentence. In fact, this sentence is not great writing. But I have seen instances in which re-writing it would be a real problem.
Chris
Chris: Thanks for reminding me about this issue. Usually it would be better to do without this usage, but I agree that sometimes it’s the best alternative. Ken
I believe that the history of this kind of language may come from statutory provisions for bills of exchange (i.e. cheques) and legal descriptions of lands for land registries (which in Canada/Alberta continue to exist). However, I agree that in contracts use of numbers/words in this way are another example of the archaic formalities some people retain in their contracts that should be done away with.
Gord Pennell
In drafting leases, wherever a number is a significant term of a clause or section, I will use the numeral rather than words – even 1 through 10 (e.g., “upon 3 days written notice”). Since it appears in a place where one is likely to want to hone in specifically on that number, I believe my method makes future reference easier.
By the way, what do you think of “3 days” rather than “3 days’ “….I think I may be gramatically wrong, but the apostrophe strikes me as very pedantic.
David: I see your point, but I’m not inclined to follow suit: I prefer consistency.
Regarding apostrophe use, you’d say “one day’s notice,” wouldn’t you? To be consistent, you’d say “three days’ notice.”
Ken
Your suggestion avoids messiness in the term “billion” (not that it probably comes up a lot in contracts), not that numbers of that size probably come up in most contracts. I think another reason that people may have distrusted digits traditionally is that they are easily altered in printed documents. (See, for example, the movie The Verdict.) Not to mention the practical effect of ink chipping or rubbing off. Redundancy is not just an opportunity for confusion, but also an opportunity to catch errors, so it isn’t all bad. It’s why accountants do double-entry bookkeeping and why computers use parity checks on transmitted data. Doing it in two forms traditionally probably had the effect of making it hard to alter without someone noticing. Changing a 3 to an 8 might be a piece of cake, but changing the word “three” to the word “eight” without anyone noticing is a bigger feat. In the modern world, we do more transactions electronically, so we can sign provide this check in other ways. We can sign things digitally, for example. Or we can acquire a few digits (an MD5 signature, for example) that act as a verification that a document is the one we expect in the form we expect. So as technology evolves to take over some of that burden, I guess I agree that one can simplify the wording as you suggest. (And I do always like that you’re out there simplifying wording. Not enough of that going on.) But I think at least historically it must have had a real material purpose that you were not fully highlighting. In its time it made sense.
Kent: I haven’t had occasion to discuss “billion” in a blog post, but see 13.398 of the third edition of MSCD.
I agree that nowadays, with exchange of email copies, the idea of using forgery to change numbers is unlikely.
Ken
I have an MCSD, but I guess it’s an earlier edition (2007). Chapter 13 tops out at 13.41. (I’ll assume you didn’t typo and mean to say 13.39. Since you didn’t spell it out though, I can’t be sure. Heh.) If you could summarize briefly, or even just say what the topic is, I’d be curious to know, but if it’s a hassle don’t sweat it.
Thank you for posting this! I’ve been trying to eliminate this type of drafting for many years, but other lawyers are so traditional that they refuse to see the light.