The Passive Voice Has Its Uses

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 …

Any preference?

[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.]

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.