“The Date That Is”

The phrase the date that is—as in before the date that is, after the date that is, no later than the date that is, and so on—is almost always clutter and can be surgically excised. Nevertheless, it occurs in more than 10,000 contracts filed on the  SEC’s EDGAR system in the past year.

Here are some examples dredged from EDGAR, with the strikethrough added by me:

If the Exchange Offer is not completed … on or before the date that is 270 days after the Closing Date … [Preferred alternative: … no later than 270 days after the Closing …]

All invoices must be submitted on or before the date that is six months after the Additional Premises Commencement Date. [Preferred alternative: … no later than six months after the Additional Premises Commencement Date.]

… with respect to the Collection Period that commences at any time following the date that is not later than three months following adoption of the form thereof by the CREFC(R).

… are included in the registration statement on Form F-1 or Form F-3 or otherwise, as applicable, that is to be filed with the Securities and Exchange Commission promptly and in no event later than the date that is 60 days after the closing of the merger with Westinghouse Solar, Inc.

Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date that is one year after the date of the issuance of such Letter of Credit …

The only exceptions I encountered were in the definition of a defined term that uses the word date. In that context, you can’t avoid using the date that is:

“LIBOR Determination Date”: (i) With respect to the initial Interest Accrual Period, the date that is two (2) LIBOR Business Days prior to the Closing Date, and …

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 ““The Date That Is””

  1. I find that describing dates and deadlines is one of the areas where drafting most often departs from the way people otherwise speak and write. This is probably because there are some common ambiguities in the way that people describe time that need to be eliminated in proper drafting – the classic being whether “10 days’ notice” of a meeting means 10 clear days (i.e. you need 10 clear days between the date of the notice or the date of the meeting – so notice on 1st Jan and the meeting on the 12th) or that the meeting has to be 10 days after the notice (i.e. 9 clear days between them – so notice on 1st Jan and the meeting on the 11th, 10 days later). Usually the ambiguity over time relates to this same issue, one way or another – it is uncertain which of two possible days is referred to or permitted.

    Resolving this without sounding convoluted isn’t always easy. I think your 3rd and 4th examples are straightforward improvements (though the original text of the 3rd is hard to make sense of – your version has a clear meaning that wasn’t necessarily present in the original…).

    I think the 1st, 2nd and 5th don’t read grammatically now, though – you can’t say “must be submitted on… 6 months after…”, and the others have the same problem. I think the clearest way might be to say “within 270 days of the Closing Date”. People probably fear an ambiguity there, though personally I don’t think “within… of…” is ambiguous – “within 1 day of…” can surely only have one meaning, and can’t provide for a clear day? People might be able to devise counter-examples.

    Incidentally, I don’t think anyone cares at the time of the contract whether the period is 269 days, 270 days or 271 days etc,, so I think the only meaningul imperative is to express the period unambiguously. It will rarely matter whether “within” implies the same as “on or before” or “before”.

    • Use of the date that is doesn’t created inclusive-or-exclusve ambiguity. But in my haste to eliminate it from the examples, I didn’t notice the problem you pointed out with the first and second examples; I’ve now adjusted them. Thanks.

      I think the fifth example doesn’t pose the same problem. I would have written it differently, but the point of this post is just to point out the shortcomings of the date that is, not to turn a sow’s ear into a silk purse.

      My beef with within is not what you suggest. See MSCD 10.49.

  2. I think it is linguistically useful to use “the date that is” when you need to refer to a specific hour on a specific day, such as when requiring a party to perform by no later than “5:00 p.m. on the date that is three days before” some other scheduled event.

  3. On the principle that a contract should be clear without resort to case law or customs outside the four corners of the document, I like the formulation “where the Closing Date is day zero and the last day for timely notice is day 10” and variations on that.

    If the notice must be by “close of business” on day 10, that must be specified, and I like “5 p.m. New London time” as clearer than “close of business.”

    The great principle about time in contracts is to specify periods from point to point. A day is not a point in time, but a period of time, and ignoring that fact is the cause of almost all ambiguity about time in contracts.

  4. “the date that is” can also be useful if you are defining a term “on-site” rather than in an index of definitions. For example:

    “In order to exercise the Option, the Holder must provide notice to the Company no later than 5 p.m. New York time on the date (the “Exercise Deadline Date”) that is five Business Days after the date on which the Company has provided the Option Availability Notice.”


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