Another One for the Scrapheap: “Stipulates That”

Use stipulates that in a contract? No thanks.

Sometimes it’s used in language of declaration, instead of acknowledges:

Borrower acknowledges and stipulates that the Loan Agreement and the other Loan Documents executed by Borrower are legal, valid and binding obligations of Borrower that are enforceable against Borrower in accordance with the terms thereof … .

In addition, Executive stipulates acknowledges that breach by Executive of restrictions and requirements under this Agreement will cause irreparable damage to the Releasees in the case of Executive ’s breach … .

The Company agrees and stipulates acknowledges that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.

At other times, it’s throat-clearing—a redundant verb structure tacked on before whatever verb structure is actually doing the work. Like this:

In determining the period of any violation, the Parties stipulate that in any calendar month in which Executive engages in any activity in violation of such provisions, Executive shall be deemed to have violated such provision for the entire month, and that month shall be added to the duration of the non-competition provision.

Borrower and Lender agree and stipulate that any [Any] judgment or arbitration award entered against Borrower shall be reduced by $1,000.00 and such $1,000.00 shall become the new Outstanding Balance of this Note and this Note shall expressly survive such judgment or arbitration award.

If under any circumstances the aggregate amounts paid on the indebtedness evidenced by this Note prior to and incident to the final payment hereof include amounts which by law are deemed interest and which would exceed the maximum non-usurious rate of interest which could lawfully have been charged or collected on this Note, as above mentioned, Debtor stipulates that (a) any non-principal payment shall be characterized as an expense, fee, or premium rather than as interest and any excess shall be credited hereon by the holder hereof (or, if this Note shall have been paid in full, refunded to Debtor ); and (b) determination of the rate of interest for determining whether the indebtedness evidenced hereby is usurious shall be made by amortizing, prorating, allocating, and spreading, in equal parts during the full stated term hereof, all interest at any time contracted for, charged, or received from Debtor in connection with such indebtedness, and any excess shall be canceled, credited, or refunded as set forth in (a) herein.

Whether or not Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights hereunder with respect to the Engine or Lessee upon the occurrence of an Event of Default , Lessee and Lessor hereby stipulate that Lessor shall be entitled to sequester the Engine and Lessee shall deliver the Engine into the custody of Lessor or its designated agents for such purpose, at Lessee ’s expense, upon receipt of a written demand from Lessor with respect thereto.

Use of stipulates might be the result of cross-contamination from litigation. Here’s one definition Black’s Law Dictionary provides for stipulation:

A voluntary agreement between opposing parties concerning some relevant point; esp., an agreement relating to a proceeding, made by attorneys representing adverse parties to the proceeding <the plaintiff and defendant entered into a stipulation on the issue of liability>. • A stipulation relating to a pending judicial proceeding, made by a party to the proceeding or the party’s attorney, is binding without consideration.

On the other hand, Black’s also provides the following definition of stipulation:

A material condition or requirement in an agreement; esp., a factual representation that is incorporated into a contract as a term <breach of the stipulation regarding payment of taxes>. • Such a contractual term often appears in a section of the contract called “Representations and Warranties.”

What complete bullshit, if you pardon my French.

In any event, go and stipulate no more.

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.

12 thoughts on “Another One for the Scrapheap: “Stipulates That””

      • OK, here’s a better example: “The rights and obligations under the employment relationship are _______ in the employment contract dated 10 November 2017.” Laid down? Established? Stated?

          • Totally not annoying, I’m always happy to hear from you! (I want to take one of your seminars someday). I’m actually a translator, so I have to include it. (Incidentally, this is from an agreement on relocating an employee temporarily).

          • If it were in a recital, “are set forth in…” is pretty common. If it’s supposed to do something else, that’s where Ken’s “what is the purpose of the sentence?” comes in.

    • If the contract referred to is the contract in which the phrase in question appears, strike it out. For ‘The contract stipulates that Acme shall pay Widgetco $1 per widget’, just say, ‘Acme shall pay Widgetco $1 per widget’.

      ‘The contract stipulates that’ is also anthropomorphic (contracts can’t stipulate anything, only parties can), but drafters vary in their sensitivity to anthropomorphism.

  1. In at least one of its senses, ‘stipulate’ is language of agreement, which should appear only once per contract. If ‘stipulate’ is proposed for use in other senses that fall into other categories of contract language, use one of the verbs associated with those categories.

  2. When an office tenant sued for a rent reduction 3 years after the term started, an Ohio ruled that the tenant was not bound by the following stipulation in the lease: “From and after the Effective Date, the Net Rentable Area in the Leased Premises, as described in Section 1 of the Original Lease, shall be stipulated for all purposes to be approximately 5,845 square feet.”

    The actual rentable area turned out to be 452 less (about 7.7%). Both parties testified that if they had known the actual square footage was different, they would have used it. The court awarded the tenant a corresponding reduction in rent, retroactive to the beginning of the term. 2004-Ohio-7001

  3. I researched this one for legal translation from Chinese. In the contracts I see translated in China, the word ‘stipulates’ is almost always used where ‘provides’ would be used, resulting in very difficult legal writing. But in legal English, we almost always see it used for things like stipulated orders and jury instructions, in addition to stipulated facts appearing in appellate cases.


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