Yesterday I saw this tweet by Kaitlyn Fydenkevez:
I have spent a large portion of my day fighting over whether a particular contract should refer to itself as “this Form” or “this form”. @AdamsDrafting, what have you done?
What we’re seeing here is what happens when you eat the fruit of the contract-drafting tree of knowledge—you look around with new eyes, aghast to find that you’re surrounded by dysfunction, and you start trying to figure out how to deal with it. (I wrote about that in this 2014 blog post.)
I thought Kaitlyn might find it helpful if I elucidate the two rules of using this in contracts. “Two?,” I hear you say, quizzically. Yes, two; this blog post is the first time I have dared to articulate the second rule.
The First Rule
The first rule is straightforward: When this is used for a document’s reference to itself, the following noun (or noun phrase) shouldn’t have an initial capital—you’re not stating a title, you’re just referring to a thing, and in English we don’t give things an initial capital. I hear you ask, “But what if this used in that manner is followed by a defined term?” Well, it should never be followed by a defined term, because use of this means there’s never any question what you’re referring to.
This plays out primarily in connection with traditionalists insisting that you use the defined term this Agreement. I’ve looked at this nonissue from every angle, and it remains a nonissue—there’s no justification for using the defined term this Agreement. (You’ll find some relevant posts here.)
If you use it nevertheless, that means one of two things. First, if you persist in thinking that treating this agreement as a defined term serves a useful function, congratulations—you’re a copy-and-paste monkey! You’re hereby sentenced to stand at a busy intersection of your choice wearing nothing but this T-shirt.
And second, if you use it because you don’t want to rock the boat by telling anyone they’re a copy-and-paste monkey for using it, that means you’re a jobsworth. According to Wikipedia, “‘Jobsworth’ is a British colloquial word derived from the phrase ‘I can’t do that, it’s more than my job’s worth’, meaning that to do what is requested of them would be against what their job requires and would be likely to cause them to lose their job.” For junior lawyers in a law firm, being a jobsworth is a legitimate defense mechanism.
In a reply to her initial tweet, Kaitlyn says, “‘this is just what we do and we will not change it’ yes, I am deeply aware of that.” Mad props to Kaitlyn for raising the issue. Because nothing is at stake when someone says this Form instead of this form, there’s no point expending any real bargaining power over it. But it advances the cause of rationality in contract drafting if you point out to traditionalists that they’re being stoopid in insisting on such matters. If they hear it often enough, at some point they’ll stop demanding that we all replicate their nonsense.
The Second Rule
In contracts, this could be used in a context other than a document’s reference to itself—it could be used to refer to a specific thing or situation just mentioned. For example, If after an Incident Acme does not promptly notify of Widgetco of Acme’s damages arising from this Incident ….”
But I would always use that in this context. To my ear, using this in this context suggests something that’s somehow close at hand. That’s never the case with this use of this in contracts. As such, using this in this context contrasts with using this in, say, this agreement, where what is being referred to really is close at hand.
On the couple of occasions I’ve mentioned this preference in public, I’ve jokingly said that I’d never attempted to justify it. Well, I’ve just given it my best shot!
10 thoughts on “The Two Rules of Using “This” in Contract Drafting”
Ken, what about “this Section 3.2”? And especially when it appears in Section 5.4?
Great post, btw.
I leave that sort of deep scholarship to you! :-)
As always, thoughtful and reasoned. And speaking of eating the fruit of knowledge, I had never thought about the second rule. I have always used “that.” And the first time I read the second rule, I thought, “Using ‘this’ would be wrong.” But once you got me thinking about it, I suppose “this” could be used for “that” when referring to something just mentioned. :-)
Your second example, the use of “that” to describe something just mentioned is most often an alternative to the ever-irritating use of “such.” I don’t think I’ve ever seen the word “this” used for that.
And to avoid Steve Gullion’s problem, I usually refer, if the target reference is to the same section as the pointer, to “this section” (or “this subsection” or “this clause,” as the case may be), which avoids having to go back and check references when a section number changes through the editing process. If it was never a reference to its own section, then obviously you leave out “this” (and decapitalize–decapitate?–“section”).
I’ve seen “this” often enough to have given it some thought. (Maybe twice!)
Your suggestion regarding “this section” is sensible. It might appear in MSCD6!
In a prior role in state government, I was involved in a major update of contract templates. I think one of the most useful things I contributed to that effort was to change everywhere that said “this Section X” to “this section.” Messing up section references with the specific section number listed was one of the most common mistakes that I saw, and including the section number when the reference is self-referential to the section it is in (whatever the number) serves no purpose other than to increase the likelihood of an error.
1. I learn a lot from your posts, but I find your tone and style arrogant and annoying. Is it really useful to suggest your readers to tell people that they are being “stoopid” (btw, if you’re going to make that suggestion, you should own it 100% and just use “stupid”) or refer to other people’s language as “nonsense”, or use what are arguably pejorative words like “jobsworth”? Is it really useful to resort to name-calling like “monkey” and dividing the world in “traditionalists” and ¿XXX?? And it certainly doesn’t help that you sell t-shirts! (are they really worth the effort? Couldn’t you use more positive analogies, like calling yourself a “contract hacker” or something like that?????) As someone who has “fought” in the “Copyright Wars”, who is a legal tech angel investor and who has spent considerable amount of his time building local communities for Creative Commons and Legal Hackers, I’ve always felt that the “us” and “them” rhetoric is harmful. These associations learned that lesson early and tend to avoid that language… I’m tired of finding polarization even when discussing contract drafting! hahaha Just saying…
2. What is the meaning of “… the parties agree that XYZ but this agreement”? Does the word “agreement” refer to what the parties just agreed to in the sentence or to the whole agreement that the parties signed? I think a lot of people would argue that the meaning would be 100% clear from the actual context of the complete sentence, but I would argue that you could just use the capital initial and have the certainty instead of spending time changing the language or discussing the general principle… I think that’s “rational”, but maybe I’m just a traditionalist jobsworth copy-paste monkey saying nonsense ;-).
Hi Andres. If something is nonsense, why shouldn’t I say it’s nonsense? This stuff matters. I constantly refer to the dysfunction of traditional contract language and how it wastes time and money, results in suboptimal deal outcomes, and increases the risk of dispute. Are you going to chide me for that too?
Am I pugnacious? Yes, somewhat. That’s because I’m in a fight.
I engage in polemic for two reasons. First, it can help change minds. And second, it’s more likely to keep me and the reader interested. Yes, some will find it annoying, but I don’t expect to please everyone.
Polemic requires taking risks. For example, my use of the word “jobsworth”. I opted to use it because it’s an interesting word. Yes, it’s pejorative, but I say that in this context, being a jobsworth is a legitimate strategy. So I’m sending mixed signals. That might be part of not being boring.
Do I always get the tone right? No. But if I decide I’ve been a jerk, I try to make amends, then I move on.
I stayed away from “copy-and-paste monkey” for a few years, but I succumbed to its design potential. Is selling T-shirts a good idea? A bad idea? I have no idea; I simply decided to try being playful. For what it’s worth, all proceeds from the merchandise go to charity.
I’ve been riling people up for the 17 years I’ve been blogging. But plenty of people are OK with my take on things. For example, see Steve Gullion’s note in his comment to this post: “Great post, btw.”
Regarding the meaning of “… the parties agree that XYZ but this agreement”, that’s something I would never write, because it’s garbled. So I don’t accept that it constitutes an argument in favor of the defined term “this Agreement.” As I note in the blog post at https://www.adamsdrafting.com/this-is-what-confusion-over-this-agreement-looks-like/, to come up with arguments for “this Agreement” requires going to outlandish lengths.
We could sidestep any discussion by using “this contract” instead of “this agreement”, but that would require changing an ingrained habit for marginal benefit.
In any event, I hope you keep reading and forgive my occasionally indulging in polemic!
Your reference to Steven Gullion’s “Great post, btw’ cracked me up! :) Thanks!
As to the second rule, I would prefer “the” to either “this” or “that” or “such”:
“If after an Incident Acme does not promptly notify of Widgetco of Acme’s damages arising from the Incident ….”