[Updated 8 Dec. 2021: Ignore this post! I got it wrong! I misunderstood the function of not be entitled to. It would make sense to delete this post, but instead I’ll keep it here as a monument to my frailty. Or something.]
Let’s talk dual verb structures.
I’ve written about them previously. For example, see this 2007 post about be and hereby is, which I dubbed “the lamest usage.” That post is about corporate resolutions, but be and hereby is also occurs in contracts:
… any such Certificateholder’s claim against any other assets shall be, and hereby is, subject and subordinate in all respects to the rights of other Persons to whom rights in the other assets have been expressly granted …
And there’s also shall indemnify and keep indemnified, discussed in this 2014 post.
But only now have I gotten around to recognizing dual verb structures as a general phenomenon. What prompted that is what is, to me, a new dual verb structure: shall not be entitled to and shall not X. The element shall not be entitled to could come before shall not X, or it could come after. The X could be charge, or collect, or receive, or retain, or demand, or seek—in other words, a verb pertaining to getting something. Here are some examples:
The Representative shall not be entitled to and shall not charge or collect from the Sellers or any other Person any fees or other compensation for its services as the Representative under this Agreement.
On and after the Effective Date, Holders of Equity Interests shall not be entitled to, and shall not receive or retain any property or interest in property under the Plan on account of such Equity Interests.
A Series of the Trust shall have one Class of Preference Shares that shall not be entitled to, and shall not receive, any dividends or distributions of the assets of such Series while any Shares of any other Class remain outstanding.
The Employee shall not be entitled to, and shall not demand, any other compensation and/or benefit from the Company, unless explicitly provided for hereunder ….
The Executive shall upon termination of this Agreement, or whenever requested by the Company, immediately deliver up to the Company all Property of the Company or any Associated Company and the Executive shall not be entitled to and shall not retain any copies thereof.
However, you understand and agree that you shall not be entitled to, and shall not seek nor permit anyone to seek on your behalf, any personal, equitable or monetary relief for any claims or causes of action released by you in this Agreement , to the fullest extent permitted by law.
Executive further acknowledges and agrees that Executive shall not be entitled to and shall not seek any other benefits or Monies from the Company.
… (iii) the Securities Class Members shall not seek, and shall not be entitled to, any recovery from the Debtors, the Estates, the Reorganized Debtors and/or the assets of any of the foregoing other than the D&O Liability Insurance Policies; …
For the avoidance of doubt, Contractor shall not seek, and shall not be entitled to receive, any payment hereunder or any relief under the Baseline Schedule as a result of the removal or replacement of any Contractor Person pursuant to this Section 5.7.
One obvious feature of shall not be entitled to is that the shall fails the “has a duty” test: it’s language of policy, so I would use is or, if you’re dealing with a contingent future event, will. For some context, here’s what MSCD 3.274 says about is not entitled to:
Example [6-1f], using is not entitled to and a passive complement clause, is equivalent to [6-1] viewed from the perspective of Widgetco. Provisions using is not entitled to and a passive complement clause are, like provisions using is entitled to and a passive complement clause (see 3.152), analogous to provisions in the passive voice and so exhibit the shortcomings associated with the passive voice, namely wordiness and often, as in [6-1f], an absent by-agent. Instead of using is not entitled to, focus on the party not subject to the obligation. Similarly, it’s best not to use is not entitled to plus a noun: instead of Acme is not entitled to advance notice, say Roe is not required to give Acme advance notice.
But my broader advice is that in any context, you will only ever need one verb structure. For instance, in the first of the above examples I would simply say shall not charge.
Can you think of any other common dual verb structures? (Throat-clearing, described in this post, is something different.)
1 thought on “A Dual Verb Structure: “Shall Not Be Entitled To and Shall Not X””
Regarding dual verb structures, they’re bad if repetitious — why say things twice?
But if a sentence has two verbs and each does a different job, there’s no repetition.
So when two verbs appear in a draft, the reviewer must determine what ground each verb covers. It can sometimes be hard.
To pick just one (slightly shortened) example from the post, ‘the rep shall not be entitled to and shall not collect any fees’.
First, get rid of the ‘shall’ and the passive verb ‘entitled’ that lacks a by-agent: ‘(1) this agreement gives the rep no right to collect any fees, and (2) the rep shall not collect any fees’.
The first numbered clause is what I would call language of lack of discretion, but there is no such MSCD category, so I’d fall back on calling it language of policy. It specifies a right (to collect fees) that the agreement does not grant.
The second numbered clause is pure language of prohibition: ‘the rep shall not collect any fees’.
The second clause is not exactly repetitious of the first (because the second does more), but the second includes the first, because an agreement that prohibits something obviously doesn’t grant discretion to do the prohibited thing, so there’s no need to say it doesn’t.
The first verb should be dropped because the second verb does the job of the first (and more). A Venn diagram would show the first verb as a smaller circle entirely inside the second verb’s larger circle.
Result in this example: just what Ken said — use prohibition only: ‘the rep shall not collect any fees’. –Wright