Some Defined-Term Insanity, Featuring “Collectively”

If you ever find me on the floor in the fetus position, gibbering softly, it will be because nonsense of the following sort has finally got to me.

I’ve long mocked using individually a “Party” and collectively the “Parties” when creating the unnecessary defined term Party. I had suspected that there was potential for all sorts of other mischief featuring collectively (or together)—if you’re giving Party that treatment, why not do the same for other nouns? But only today did I have the courage to go in search of it. And lo and behold, observe what I found on the post-apocalyptic wasteland that is EDGAR:

Certain provisions of the Code apply specifically to our chief executive officer, chief financial officer, senior finance officer, controller, senior vice presidents, vice presidents and any other persons who perform similar functions for the Company (each, a “senior officer,” and collectively, the “senior officers”).

… and (b) sell participation interests in the Loan one or more times (the transactions referred to in clauses (a) and (b) above, each a “Secondary Market Transaction” and collectively “Secondary Market Transactions”) …

Subject to Clauses 12.4 and 12.5, Lonza shall indemnify the Customer, its Affiliates , and their respective officers, employees and agents (each of the foregoing a “Customer Indemnitee” and, collectively, “Customer Indemnitees”) for any Losses …

The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the partial termination (the “Transaction”) of the rights and obligations under and in respect of the following transactions (each such transaction, a “Relevant Transaction” and collectively the “Relevant Transactions” and the terminated portion of each such Relevant Transaction, the “Terminated Portion”) …

Subject to Section 2.1(a)(ii), beginning on the Effective Date, Providers will provide Recipient (or, if requested by Recipient, Recipient’s Affiliates) each of the services set forth on Schedule A (each a “Service” and collectively, the “Services”).

Apparently some of us think you can no longer trust readers to understand how the singular and plural work.

For the love of gawd, please don’t do this, whether for Party or any other noun. Just do the singular, with each. And now excuse me. If you need me, you’ll find me in the fetus position.

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.

5 thoughts on “Some Defined-Term Insanity, Featuring “Collectively””

  1. I was in a all day negotiation between lawyers for GM, Ford, etc. and lawyers for the motor vehicle dealers. They were agonizing over nearly every word. Occasionally, I would chime in, but I wasn’t really on either side, so I only interjected to fix a problem. Towards the end of the day, one of the lawyers suggested we make a change to include both the singular and the plural.

    I tried to patiently explain why this wasn’t necessary, which included a statute that specifically says that the singular includes the plural for all statutes. As soon as he got the sense of my point, the Senator (who was my client) impatiently said, “what’s next?”

    The lawyer who raised the issue fixed me with an icy stare and said, “Thank you Judge Payne for your ruling.”

    The Senator started to laugh, and I couldn’t help joining him.

  2. I totally agree with this, but I admit I’m horribly distracted by the phrase “fetus position” because I always thought it was “fetal position.”

  3. Another concern with defining a group “collectively” is, how do you refer to more than one of the group but less than all? Using the first example, as defined, “senior officers” literally is all of the listed officers. How then do you refer to something less than all? E.g., if you want to specify that it takes at least two of the officers group to authorize a specific act, “two senior officers” is the obvious choice. However, it leaves open a challenge from the other party that an act was not authorized unless each of the collective senior officers authorized it.


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