“The Foregoing”

The phrase the foregoing occurs frequently in contracts. I haven’t found a court opinion in which the meaning of the foregoing was at issue, but I don’t feel the need to wait for such an opinion to come along: because it could be unclear what the foregoing refers to, I recommend you not use the foregoing.

Consider this:

Sentence one sentence one sentence one sentence one. Sentence two sentence two sentence two sentence two. Sentence three sentence three sentence three sentence three. Sentence four sentence four sentence four sentence four. Subject to the foregoing,

Figuring out whether the sentence beginning Subject to the foregoing applies to all four preceding sentences, just to sentence four, or to something else would require that you figure out how the content of the Subject to the foregoing sentence relates to what precedes it. That requires the reader to work harder than they should have to, and it allows for the possibility of confusion.

So make it clear what the foregoing refers to. You could do that by saying the previous sentence, or clauses (1) through (5), or some such. But a broader restructuring might be in order. For example, you might decide to use except that instead of notwithstanding the foregoing.

Sometimes the foregoing can seem an unobjectionable alternative to repeating a bunch of stuff. Here’s an example:

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation or remediation, fines, penalties or indemnities), of Holdings or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

But even if the foregoing is unlikely to create confusion, it’s best to purge the foregoing from your lexicon, so you don’t find yourself using it in a context where it’s a nuisance, or worse.

Does this mean that I don’t like the following either? No, it does not, as I’m happy using the following or as follows before a colon preceding a set of enumerated clauses, so the introductory statement is an independent clause (see MSCD ¶ 4.32). But I wouldn’t use it any other context.

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.