“Shall Not Allow”

It’s routine for one post to beget another.

My post on shall not negligently (here) was prompted by the following contract language:

Company will not, and will not knowingly or negligently allow any third party to [do various things].

In a comment, David Ziff considered the implications of using just shall not allow, with negligently omitted.

I agree with David. On its face, shall not allow (or permit) looks like a flat obligation. If you say (to tweak the example I use in the shall not negligently post) GuardCo shall not allow visitors to touch the cars and one or more visitors touch the cars, it would seem that GuardCo has failed to comply with that obligation.

But I could just as easily argue that to comply with a shall not allow obligation, the party in question simply has to make it a policy not to allow the activity in question. (They might post a sign saying “X not allowed!”) If it happens anyway, arguably that has no bearing on breach.

That’s why my proposed language in the shall not negligently post uses shall … prevent instead of shall … not allow.

But I wouldn’t be happy with a flat obligation using shall prevent either. That’s because if a party doesn’t have complete control, it doesn’t make sense to impose a flat obligation. Instead, I’d use a reasonable efforts standard and provide for indemnification (as David suggests) or liquidated damages if (using the same example) some visitors end up touching the cars, despite GuardCo’s reasonable efforts to prevent them from doing so.

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.