Should You Pander to Confused Judges?

In yesterday’s post I wrote about how the Appellate Court of Illinois saw value in useless contract language, namely the traditional recital of consideration and “successors and assigns” provisions.

But that post might prompt the following response: “The fact that the court saw value in the traditional recital of consideration and ‘successors and assigns’ provisions means that I should always include such language in my contracts. Doing so would ensure that if one of my deals is challenged for lack of consideration and a judge handling the dispute is under the same misapprehension as the Appellate Court of Illinois, the ostensibly useless language would stand me in good stead.”

I see three problems with this justification:

  • First, if a contract is at risk of being held invalid for lack of consideration, you should fix that by making sure you have consideration, not by gambling on a judge’s being confused enough to find real value in the traditional recital of consideration.
  • Second, the more useless language you have cluttering up a contract, the more confusing you make it for all readers.
  • And third, it might be that your side is the one that would prefer to have the contract held invalid. To the extent that a court somehow attributes significance to the useless language, it might be to your detriment.

More generally, don’t put in your contracts stuff that’s unnecessary or doesn’t make sense on the off chance that a judge might mistakenly think it accomplishes something. That’s asking for confusion.

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.