The New Engineering Contract and Using the Present Tense to State Obligations

I find it particularly interesting when an institution adopts a novel approach to stating obligations. Who can forget the Construction Specifications Institute’s recommendation, stated in its Project Delivery Practice Guide (formerly Project Resource Manual), that in architectural specifications you use the imperative mood, not the indicative mood, to express obligations. (That’s something I discussed in this 2009 post on the AdamsDrafting blog.)

Thanks to a tip from a friend of the blog, I recently heard of a different approach that’s equally interesting: the New Engineering Contract (NEC) uses the present tense to state obligations.

First, some background. Wikipedia provides a helpful introduction to the NEC:

The New Engineering Contract (NEC), or NEC Engineering and Construction Contract is a formalized system created by the Institution of Civil Engineers that guides the drafting of documents on civil engineering and construction projects for the purpose of obtaining tenders, awarding and administering contracts. As such they legally define the [responsibilities] and duties of Employers (who commission work) and Contractors (who carry out work) in the Works Information. The Works Information consists of the Contract Data part one (Data provided by the Employer) and Contract Data part two (Data provided by the Contractor). Several approaches are included making it a family of options. It is used in the UK and internationally including New Zealand and South Africa.

There have been three editions, the first in 1993, the second in 1995, and the most recent in 2005. The June 2005 edition of the NEC3 was amended in June 2006.

Regarding how the NEC states obligations, it does indeed use the present tense. I don’t have a copy of the NEC, but here are a couple of snippets that I’ve gleaned from rooting around online (I’ve emphasized the verb that states the obligation):

… the Contractor keeps accounts of his payments of actual cost …

A Partner may ask another Partner to provide information that it needs to carry out work in its own contract and the other party provides it.

I haven’t found any official explanation of the NEC’s use of the present tense to state obligations. But whatever explanation might be offered, it can’t have anything to do with how people actually speak and write English. For example, in its discussion of the varied uses of the present tense, The Cambridge Grammar of the English Language makes no mention of anything resembling use of the present tense to state obligations.

Those behind the NEC presumably think that they’re promoting clarity by using the present tense. But inventing an additional meaning for a standard verb structure is counterproductive.

I’m painfully aware that when it comes to stating obligations, there’s no perfect solution. That’s because in contracts, obligations loom larger than they do in everyday English and serve a more specialized function. As a result, everyday English isn’t well suited to stating contract obligations.

In this 2011 blog post, I revisited why I recommend using shall to convey obligations imposed on the subject of the sentence, and for no other purpose. I also explain why using will or must to serve that function is more problematic. The people behind the NEC presumably sought to avoid this sort of best-of-a-bad-job analysis. But repurposing another verb structure doesn’t accomplish that. Instead, it just makes the reader work harder and potentially creates confusion.

More generally, it’s not as if the NEC otherwise handles categories of contract language flawlessly. For example, consider the second example quoted above. Why bother granting a party discretion to ask for information? Presumably it could ask for information even if it hadn’t been granted that discretion; what’s at issue is whether it would receive any information after having asked for it. So it would make more sense to say instead “If a Partner asks another Partner …”

Based on the fragments that I’ve seen online, I feel safe saying that as a piece of drafting, the NEC could be substantially improved. No surprise there—”model” contract language is invariably put together by people who are subject-matter experts first, contract drafters second.

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.