Yesterday I unleashed on an unsuspecting world the following devastating insight:
Instead of "shall without undue delay," I'd use "shall promptly".
— Ken Adams (@AdamsDrafting) April 6, 2015
That’s straightforward enough—if you can express something positively instead of negatively and save a couple of words in the process, then you should do so.
I had planned to leave it at that, but this morning I received the following email from Patrick Wilkening, a transactional IP attorney based in Düsseldorf whom I had the pleasure of meeting when he was working in New York:
I just saw your tweet on preferring “shall promptly” to “shall without undue delay”. I tend to agree, but there is a good reason to still use “without undue delay” in German law-governed contracts. Under German law, there is an accepted legal definition of the term “unverzüglich” to mean “without culpable, i.e., intentional or negligently caused, delay”. So I tend to use “without undue delay”, often followed by “unverzüglich” in brackets, in my German law contracts, since it dovetails so nicely with that definition.
So the moral of this story is that English words and phrases can have unexpected term-of-art implications for contracts governed by the law of a civil-law jurisdiction. I’ll explore this further in the coming months.