The Subjunctive? In Contracts?

Consider the following:

  1. If the Borrower [be] [is] in default, …
  2. It is a condition to closing that the Buyer [have] [has] received an opinion of Acme’s counsel … .
  3. If Acme requires that Widgetco [pay] [pays] the purchase price in zlotys …
  4. The Company recommends that the Employee [retain] [retains] a lawyer …

In each example, the first bracketed verb structure uses the subjunctive mood; the second uses the indicative mood.

Here’s what Garner’s Modern English Usage says (rearranged with bullet points) at page 869 about use of the subjunctive:

In modern English, the subjunctive mood of the verb appears primarily in the following six contexts:

  • conditions contrary to fact <if I were king> (where the indicative would be am)
  • suppositions <if I were to go, I wouldn’t be able to finish this project> (where the indicative would be was)
  • wishes <I wish that I were able to play piano> (where the indicative would be was)
  • demands and commands <I insisted that he go> (where the indicative would be go)
  • suggestions and proposals <I suggest that she think about it a little longer> (where the indicative would be thinks)
  • statements of necessity <it’s necessary that they be there> (where the indicative would be are)

In the first two examples at the top of this post, the subjunctive is in strikethrough. Why? Again, Garner’s Modern English Usage: “Formerly, writers used subjunctives with every type of condition, whether contrary to fact or not. Today most of these sound like not-so-quaint archaisms.” That’s the case with these examples.

By contrast, the third example qualifies as a demand, and it’s that quality that prevails, even though this example is phrased as a conditional clause. So I suggest that in this example, the subjunctive is worth keeping. That’s why the indicative is in strikethrough.

And the fourth example qualifies as a suggestion, so I suggest that in this example, too, the subjunctive is worth keeping. That’s why here too the indicative is in strikethrough.

What’s the point of this post? To alert you to something you might never have considered: that in contracts the subjunctive has a role to play, and a role not to play.

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.