“There Can Be No Assurance That”

The phrase there can be no assurance that is mealy-mouthed securities verbiage that has made its way into contracts. Some examples (with emphasis added):

There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares.

There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (a) above in time to enable Owners to give instructions to the Depositary prior to the Instruction Cutoff Date.

There can be no assurance that the conditions precedent to implementing the ETF Conversion will be satisfied on a timely basis, if at all.

The phrase suffers from two fatal shortcomings:

First, because can doesn’t work as the main verb in a contract sentence (see this 2008 post), there can be no assurance that appears not to fall into any of the categories of contract language.

And second, beginning a sentence with there plus verb is weak writing, as you’re lumbering the sentence with a fake subject and fake verb; see MSCD 17.19.

The fix is simple enough: Instead of There can be no assurance that X will happen, use language of declaration: Acme acknowledges that X might not happen.

But don’t combine both approaches, as in this example:

The Company acknowledges and agrees that (i) there can be no assurance that the Designated Distribution Agent will be successful in selling Placement Shares, …

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.