MSCD 2.18 notes that the passive voice can be of use in contracts.
Consider the following example:
If any Person brings a proceeding to compel the Recipient to disclose any Confidential Information …
In this context, the active voice is wordy. It’s obvious that a proceeding would have to be brought by someone. Because it doesn’t matter who brings a proceeding, we don’t care about the subject in the above sentence. [Updated Oct. 1 11:30 a.m. EDT: I flirted with the idea of saying “a nonparty” rather than “any Person,” but Alex’s comment persuaded me to abandon that approach.] You could eliminate it by using the passive voice. That would turn the subject into the passive agent, and you could simply omit it:
If a proceeding is brought to compel the Recipient to disclose any Confidential Information …
[Updated Oct. 1 11:30 a.m. EDT: I’m back to thinking this is the better option.]
Depending on the context, a more economical active-voice structure can offer the best solution, and that might be the case here:
If a proceeding seeks to compel the Recipient to disclose any Confidential Information …
[Updated 8:25 p.m. EDT: On Twitter, @gideonalper said “Economical active version would be incorrect. Only one party in proceeding seeks compulsion, not proceeding itself.” I think Gideon’s right: I hereby wave the white flag. I’m being schooled by commenters this evening.]
5 thoughts on “The Passive Voice Has Its Uses”
I like the economy of the third, active voice option except that a proceeding does not seek. That’s the job of one’s opponent.
If a Third Party brings a proceeding to compel the Recipient to disclose any Confidential Information…
“Third Party” means any person other than a Party [or its Affiliate].
It appears odd to go to the bother of carving out parties to the agreement here. Without context it is of course hard to tell, but one presumes the two parties have access to the Confidential Information already, and thus the carve out is otiose and “if a proceeding is brought” is fine. However, if it is that important, shouldn’t you also be carving out proceedings brought by a legal representative on one party’s behalf, by group companies, by a third party at one party’s instigation, and so forth? They are “nonparties to this agreement”. In practical terms, if this was important, one would surely provide that neither party would initiate or assist in such a proceeding, rather than seeking to carve out every possible actor through which they might do so.
In my posting, I’m assuming that the phrase in question would be followed by the steps that the Recipient is required to take to avoid disclosure – e.g. notify the owner of the confidential information.
The following short passive voice phrase should, I believe, do the trick: “If disclosure of any Confidential Information is sought …”
Firstly, it’s unnecessary to refer to the Recipient. One could hardly contend with any seriousness that if disclosure is sought from the owner of the Confidential Information, then the Recipient must take some or other steps.
Secondly, it obviates the issues caused by use of terms such as “any person”, “party”, “third party”, “non-party” and so on.
Thirdly, it obviates the issues of use of the term “proceedings”. A demand made on the Recipient to disclose Confidential Information and to which the Recipient must submit, need not necessarily be made in legal proceedings. Disclosure could be required in terms of a contract. It is difficult to think of circumstances where a contract would require disclosure of another’s confidential information, but such a contract is not inconceivable.