The Redundant “Only” in Language of Obligation

Be on the lookout for the redundant only in language of obligation.

Consider this:

The Tenant may move furniture, fixtures, and equipment into and out of the Premises [only] during nonbusiness hours unless Landlord gives approval otherwise.

[Prompted by D.C.’s comment I moved only, but that’s unrelated to the topic of this post.] Omitting only could result in confusion, because the tenant could argue that it may also move stuff during business hours. Here’s what MSCD 3.190 says:

A grant of discretion to do one thing doesn’t necessarily equal a prohibition against doing other things. If a mother tells her son he may play video games, it wouldn’t necessarily follow that she’s forbidding him from engaging in any alternative activity.

As explained in MSCD, you could invoke “the expectation of relevance” in arguing that the tenant may not move stuff during business hours. But as a drafter I’m not interested in having an argument at my disposal in a fight; I want to avoid fights. If you want discretion to be limited, use only.

Now consider these two examples, the first real, the second invented:

The Carrier shall transport all loads tendered to it [only] under its own authority, on equipment owned or leased by it, and use employees or independent contractors under contract with it.

Acme shall pay the Purchase Price [only] in Polish złotys.

Language of discretion leaves open alternatives; language of obligation might not. In language of obligation that is all-encompassing, only is redundant. By “all-compassing,” I meant that it applies to the totality of whatever is at issue. Acme shall give peanuts to Dumbo means that Acme would be allowed to give some peanuts to Dumbo and devote other peanuts to other purposes. To make it all-encompassing, you’d have to say all peanuts or only to Dumbo.

The two examples above are all-encompassing without the only. In the first, that’s achieved by both all and tendered to it; in the second, that’s achieved by the reference to only one item, the Purchase Price. So omit the only.

Incidentally, this was brought to light thanks to my work with LegalSifter, in particular discussions regarding the specifications for a particular “sifter”—a piece of software that looks for a particular issue. Aside from the other merits of LegalSifter, it forces me to keep exploring ever more subtle nuances of contracts prose.

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.

9 thoughts on “The Redundant “Only” in Language of Obligation”

  1. I treat obligations like a terrorist’s demands. You follow them word for word without stepping left or right. I mean, if the guy says to bring the money through the front door, you don’t bring half through the front door and the other half through the back window (sorry, you did not say ONLY), because otherwise he will start executing hostages. Long story short, no you don’t need “only” with obligations.

  2. Ambiguity alert: The first example, with only placed where it is, could be argued to mean that during nonbusiness hours Tenant may not do anything, other than move furniture, fixtures, and equipment in and out of the Premises, unless it gets Landlord’s approval. The ambiguity probably isn’t dangerous, but as one of my former students once said, “that’s a conversation I don’t want to have.” To avoid this ambiguity, the word only would be better placed before during.

  3. Not sure that ‘language of obligation that is all-encompassing’ is a precisely definable subset of language of obligation.

    Be that as it may, I’d lean toward condemning the needless ‘only’ as rhetorical emphasis, except that I wonder whether ‘only’ might be useful in language of obligation to distinguish ‘mandatory’ from ‘directory’ obligations.

    Is that distinction applicable to contract interpretation or only interpretation of legislation?

    Here’s a recent statement of the distinction in the latter context:

    ‘The test to be applied in determining whether a statute [or administrative rule or regulation] is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience: if it is a matter of substance, the statutory provision is mandatory; if however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words’.

    If that distinction applies to contracts in some way — eg in signaling when substantial compliance or substantial completion will not suffice — then maybe ‘only’ is *sometimes* a useful ‘negative word’ in language of obligation, helping to distinguish ‘directory’ from ‘mandatory’ contract duties.

    Personally, I’d be more direct, as in (directory) ‘an opinion letter in *substantially* the form of appendix A’ or (mandatory) ‘Cholmondeley shall pay the Installments entirely and exclusively in Polish zlotys’.

    But I’m not sure the mandatory/directory distinction exists under that nomenclature in contract drafting. So I’m asking. –Wright


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