A Gripping Issue of Notice-Provision Terminology: “Telecopier,” “Facsimile,” or “Fax”?

Every issue of contract language, no matter how minor, is worth addressing correctly. And some readers have clearly embraced that approach.

For example, I received the following note from reader David Baghdassarian, an associate at K&L Gates:

Have you opined on use of the word “telecopier” instead of “facsimile” (or “fax”)? I believe “telecopier” was Xerox’s brand name for an early fax machine, and using it to describe a fax machine is like using “Kleenex” to describe a tissue. I see “telecopier” regularly in documents and it always bothers me.

David is correct—Telecopier is a Xerox brand name, so it’s silly to use it when you want to refer to all facsimile machines. I confess that I used to use telecopier in notice provisions. I think I liked the symmetry with telephone. And I may even have thought it sounded more genteel than facsimile and fax, with that harsh “X” sound. Boy, was I a twerp.

In any event, telecopier is on the way out. It was used in only 219 contracts filed on the SEC’s EDGAR system in the past month, whereas in the same period 2,041 contracts used the word facsimile and 961 used the word fax.

As between facsimile and fax, I say use fax, with respect to both the machine and that which it transmits. Garner’s Modern American Usage says that fax “is now all but universal, in the face of which facsimile transmission is an instant archaism—and a trifle pompous at that.” It suggest that fax “is now perfectly appropriate even in formal contexts.” I agree.

But don’t write fax with all capitals, as if it were an acronym. It’s not.

One’s entitled to wonder how much longer fax and its variants will continue serve a useful function in contracts. They’re likely to go the way of the telex, which appears to be all but dead as a means of communication. Of course, telex was used in 185 contracts filed on EDGAR in the past month, but that’s less a testament to continued usefulness than an indication that all sorts of obsolete crud can be found lurking in contracts. But I’m prepared to have a reader tell me that telex is still useful in maritime contexts, or some 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.

14 thoughts on “A Gripping Issue of Notice-Provision Terminology: “Telecopier,” “Facsimile,” or “Fax”?”

  1. Anyone still seeing reference to telex and telegrams in notice provisions? I don’t think much about it when I see these terms–it’s usually not worth messing with an optional method of notice in someone else’s agreement. That’s a surefire way of drawing a charge of “overlaywering.” And there are usually more important things to focus on.

    I was interested to note from the Wikipedia link in your post that “Western Union announced the discontinuation of all of its telegram services effective from 31 January 2006.” I also learned what a telex machine is, and how one works.

  2. When I first started practice in Toronto, in 1981, we dispatched marked up drafts to the other side by courier, knowing that we had bought ourselves several days to occupy ourselves with other matters, until opposing counsel got around to preparing another draft (literally by cutting and pasting) and couriering it back to us.

    Then came the Telecopier, and one could electronically one’s document to the other side, subject to two comments. At the outset, there were hardly any firms or companies in Canada with the machines. Second, and more importantly, it took six minutes to transmit each page. Six minutes! Cheaper than a courier, granted, but time-consuming. It nonetheless gave us some breathing room, but a little less.

    Then came the next generation fax machines (and they very quickly became so ubiquitous and cheap that a free-lance writer friend of mine had one in his home office, only a few years after the telecopier years!).

    Then followed e-mail, and then the BlackBerry, …

    None of which relates to the drafting issue that you raise, Ken, but the reference to telecopier brought that all back.



  3. Whenever I see the word “telecopier” in a contract, I can’t help but think of a line spoken by Mr. Burns in a “Simpsons” episode years ago: “I’d like to send this letter to the Prussian consulate in Siam by aeromail. Am I too late for the 4:30 autogyro?”

    I’d like to see all of these words go away; let’s replace them with “imaged” or something like it. A fax is more like a PDF or TIF file than unlike it, so perhaps we shouldn’t use different words which increasingly only serve to describe the recipient’s choice about how the transmission is viewed.

    That said, some may still want to draw a distinction between the two based on the transmission “pipes” (i.e., phone vs. internet), but this distinction is also losing its relevance, what with VOIP and the like.

  4. I have an easy solution to this problem: leave out notice via fax, facsimile, or telecopier entirely. My company has only a few fax machines on each floor of its headquarters, and it is not unheard of that an important letter sent via fax has languished in a fax machine because no bothered to check the machine or was picked up by mistake by the wrong addressee. In my opinion, the best way to assure effective contractual notices is either by overnight courier or US certified mail, return receipt requested.

    Then there is the matter of email notices. I allow for email notices as valid if and when acknowledged by the recipient and sent to a generic email address (e.g., legal-notices@ yourcompany.com) which comes to me (in the Legal Department) or another attorney when I am unavailable.

    Finally, as other commentators point out, the era of the fax machine is coming to a close, so the tried and true notice provision allowing for faxed, facsimile, or telecopied notices requires updating.

  5. Chad: I acknowledge in my post that fax is unlikely to be with us much longer. And your comment reminds me that I should tackle the question of email notices. Ken

  6. Ken,

    Thanks for answering my question.

    As for email notices, the problem I have is that there is too much room for an email to inadvertently be deleted or overlooked, email server to crash, email to be stuck in a spam filter, lost in cyberspace, never sent due to some weird system error, etc. for me to allow for its use as a method of notice at this time. I have allowed for email to be used to provide periodic financial reporting that may be required under an agreement simply for convenience, but for notices of default and the like, delivery of email to a recipient and proof of its receipt is not yet reliable enough for me. And I am a techno-geek who was previously a system administrator. (Maybe that’s why I am so averse to email—I know what can happen to it in transit and how emails and email receipts can be altered.)

  7. While we are remembering times past, how long did Federal Express offer Zapmail? In the mid-1980’s, you could deliver your document to Federal Express, who would fax it to the Federal Express office of your choice. That office would then deliver the printout to your recipient by courier. Cheap, fast fax machines soon made it obsolete, but like the Pony Express, it was a short-lived but efficient use of the best technology then available.

  8. Regarding notice provisions, I’ve heard opinions of litigators to not even permit the use of fax or email in contracts since they represent a burden to prove in trial…

    To some extent I agree but I also feel that the law should not go a separte way from modern technology… email is everywhere and everyday tons of emails are sent in connection to agreements and businesses…

    I feel this “long distance” communications issue is here to stay and may take a long time to be solved.

  9. “telecopy or
    other facsimile transmission” is in the 49-page LP agreement I’m reading in April 2016. Of course, so are successors and assigns and counterparts, so that’s not surprising, is it?


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.