“Shall Not Negligently”

While analyzing the usages in a contract I pulled from EDGAR (more about that in due course), I spotted the following:

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

But does it make sense to impose an obligation on someone not to act negligently? Is that equivalent to imposing an obligation on someone not to commit a tort?

No, I don’t think it is equivalent to imposing an obligation on someone not to commit a tort. Imagine that the curator of the Acme Museum of Antique Cars is obsessive about maintaining the impeccable shine of the cars in the museum’s collection. The cars are on public display, and the great unwashed have a habit of putting their grubby fingers on the cars. So in a contract with the company that provides the museum’s guards, the curator inserts the following: “GuardCo shall not knowingly or negligently allow visitors to touch the cars.” It wouldn’t make sense to read that as imposing on GuardCo an obligation not to commit a tort. Outside of the confines of the contract, if the curator were to bring a tort claim for negligence against GuardCo because guards had failed to prevent visitors from touching the cars, that claim would be laughed out of court. Tort claims are intended to address breach of society norms; they’re not intended to address an individual’s pet peeves.

But if this kind of provision can’t reasonably be considered to relate to tort standards of care, it’s a bad idea to use in it the word negligently, which is a torts term of art.

I think the drafter should have employed a different, and utterly standard, contract usage: an obligation not to negligently allow someone to do something is better expressed as an obligation to use reasonable efforts not to allow someone to do something! So here’s how I would have phrased the language that prompted this post:

Company shall not do, and shall use reasonable efforts to prevent nonparties from doing, the following: [list various things].

There’s no end to the fascinating nuances in contract language! You can look forward to a version of this discussion appearing in the chapter on efforts provisions in the fourth edition of MSCD. Unless, of course, further reflection show this to be a load of piffle.

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.