“Suffer”

In contracts, use of the word suffer comes in two flavors, silly and annoying.

Silly

First, silly—the intransitive use of suffer. When use to mean “to submit to or be forced to endure,” suffer is unobjectionable: I suffer from chronic insomnia. But it’s a bit much when used in contracts to mean “undergo, experience.” Oh, how Acme suffers! Usually the simplest fix is to use incur instead. But because suffer is used with an abstract noun, sometimes your best bet is to use an adjective instead.

Here are some contract examples of the intransitive use of suffer (from EDGAR, of course), appropriately revised:

The Consultant will fully indemnify and hold harmless the Company from and against all assessments, claims, liabilities, costs, expenses and damages that the Company may suffer or incur [read incurs] with respect to any such taxes incurred by Consultant in connection with compensation paid hereunder or the benefits as described above.

The parties agree that the provisions of Section 5.03 are fair and reasonable and that the amounts payable by the Company to the Executive or for his benefit pursuant to Section 5.03 are reasonable estimates of the damages which will be suffered by the Executive in the event of the termination of his employment with the Company [read that the Executive will incur if his employment with the Company terminates] in the circumstances set out in Section 5.03 and will not be construed as a penalty.

the Borrower shall pay to such Lender such additional amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation for any such reduction suffered [read for any such reduction that it incurs].

Except as described in the Draft 10-Q, since October 27, 2012, the Company and its subsidiaries, taken as a whole, has not suffered any Material Adverse Effect [read no Material Adverse Change in the Company and its subsidiaries, taken as a whole, has occurred], except for

If Employee should suffer a Permanent Disability [read is Permanently Disabled] …

The Executive acknowledges and agrees that if he were to divert this information and the relationships to a competitor, the Company would suffer irreparable harm to its business and goodwill [read the Company’s business and goodwill would be irreparably harmed] in an amount that cannot be readily quantified.

Annoying

And now, the annoying use of suffer—using it transitively to mean “to allow, especially by reason of indifference.” It’s pompous and archaic. Usually the simplest fix it to use instead permit, but sometimes a rewrite is in order. Here are some EDGAR examples:

Borrower Representative shall not, and Borrower Representative shall not permit any of its Subsidiaries to, create, incur, assume or suffer [read permit] to exist any Lien on any of its assets, including the Collateral, other than the following (collectively, ” Permitted Liens “)

Mortgagor … will suffer [read permit] no waste to the Property …

Borrower will not do any of the following … : replace or suffer the departure of its chief executive officer or chief financial officer without delivering written notification to Bank within 10 days after such replacement or departure [fail to notify the Bank no later than 10 days after the Borrower’s chief executive officer or chief financial officer is replaced or ceases acting as such];

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.