Stating the Part of Speech of a Defined Term

An autonomous definition might refer to the part of speech of the defined term. If it does, invariably it’s because one or more related forms of that defined term are used in that contract and are treated as defined terms too. Here are four examples:

“Transfer” means, when used as a noun, any voluntary or involuntary, direct or indirect (whether through a change of control of the Transferor or any Person that controls the Transferor, the issuance or transfer of Equity Securities of the Transferor, by operation of law or otherwise), transfer, sale, pledge or hypothecation or other disposition and, when used as a verb, voluntarily or involuntarily, directly or indirectly (whether through a change of control of the Transferor or any Person that controls the Transferor, the issuance or transfer of Equity Securities of the Transferor or any Person that controls the Transferor, by operation of law or otherwise), to transfer, sell, pledge or hypothecate or otherwise dispose of. The terms “Transferee”, “Transferor”, “Transferred”, and other forms of the word “Transfer” shall have the correlative meanings.

“Control” used as a verb means, when used with respect to an entity, the ability … ; and “Control” used as a noun means an interest that gives the holder the ability to exercise any of the foregoing powers.

“Guarantee” means, as to any Person , without duplication, (a) any obligation, contingent or otherwise, of such Person … . The term “Guarantee” as a verb has a corresponding meaning.

“Commercialization” means any and all activities directed to … . When used as a verb, “Commercialize” and “Commercializing” mean to engage in Commercialization and “Commercialized” has a corresponding meaning.

This approach seems heavy-handed. Regarding the first example, it results in a contract full of defined-term variants of Transfer.

A different approach uses refers to if the part of speech of the defined term doesn’t match that of the definition. That’s the case when you have more than one defined term:

“Register”, “Registered”, and “Registration” refer to a registration effected by preparing and filing a registration statement under the 1933 Act … .

This approach is more economical, but you might still end up with more defined terms than is desirable.

Yet another option would be to have an internal principle of interpretation do the work:

If a term is defined as one part of speech (such as a noun), it will have a corresponding meaning when used as another part of speech (such as a verb).

But if an undefined related form of a word used as a defined term occurs in the same contract, this principle of interpretation could have unexpected consequences. I’d feel more comfortable stating explicitly what the defined terms are.

You might be able to avoid all such contortions. The point of the defined term Transfer, for example, is to make it clear that you can have different kinds of transfer. Perhaps that be accomplished by saying, in the main provision dealing with transfer, whether voluntarily or involuntarily, etc., and then having other references piggy-back off of that.

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.