The Problem with “Personal Delivery”

The English case Ener-G Holdings PLC v Philip Hormell (discussed in this post) also had to consider what it means to say that notice can be served by “delivering it personally.”

In that context, “personally” could relate to the person doing the delivering. After all, one says, “I delivered it personally,” meaning that the speaker was the one who delivered the item in question.

But in this instance, the court decided that the best interpretation was that “personally” referred to the recipient, so that complying with the provision required that notice be handed to the recipient.

I see further issues lurking: Does the notice actually have to handed to the recipient? What if it’s placed before the recipient? What if the recipient is in the next room? And so on.

So the moral of this case is, Never say in a contract “deliver X personally,” “by personal delivery,” “personal delivery,” or any variant. Instead, provide for delivery to a name and address by specified means (by national transportation company, by registered mail, by carrier pigeon, etc.) and specify when notice will be deemed to have been received. Koncion’s NDA template has a state-of-the-art notices provision that does just that.

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.