“There Is”

Use of there is or there are in a sentence is not only more often than not a sign of clutter: it also allows drafters to play, presumably unwittingly, the game of hide-the-actor.

Consider the hot-off-the-presses case of Florida Department of Highway Safety and Motor Vehicles v. National Safety Commission, Inc., which a reader just told me about (PDF copy here). The litigants were party to a contract that was to terminate on December 10, 2010, except that the contract also stated as follows:

There is one renewal option for a five (5) year period.

In November 2009, the Department told NSC that it didn’t want to renew the contract; a few months later, NSC notified the Department that it was exercising its right to renew the contract. The Department refused to renew, so NSC sued. The issue? Whether NSC had the unilateral right to renew.

The lower court somehow held that NSC “possessed an unambiguous, unilateral right” to renew. The Florida District Court of Appeal disagreed, citing caselaw to the effect that the purpose of the state procurement statute—the source of the renewal concept—was to exempt the parties from competitive bidding if they both wanted to renew.

Although the pre-contract documents between the parties contained wishy-washy renewal language, the contract gave the parties an opportunity to say how renewal was actually meant to operate. But consistent with the standards of what, according to the court’s description, may have been a grubby little deal, the drafter instead opted for “there is” plus the abstract noun “option”. As a result, the reader is left without any idea who has the option.

[What follows reflects Mark Anderson’s comment below]

In some other context, the fix might have been to use a real subject and a more robust verb, changing There is one renewal option to Acme may renew. But here, as is often the case, the fix is more drastic: Because renewal isn’t unilateral, the parties could elect to renew whenever they want. Furthermore, as Mark Anderson notes in his comment, Florida statutory law specifies what the contract has to say regarding renewal.

So I propose the following fix (using bullet points because the “(1)” hierarchy isn’t available):

Any renewal of this agreement will be effective only if it satisfies the following conditions:

  • the renewal (A) is in writing, (B) specifies a termination date that is no later than December 10, 2015, and (C) leaves unchanged the provisions relating to price;
  • the Contractor does not charge the Department any amount in connection with the renewal;
  • the Department has evaluated the Contractor’s performance and determined that it is satisfactory and the Department has notified the Contractor of that determination in writing; and
  • the Department has determined that sufficient funds will be available to allow it to meet its obligations under this agreement as so renewed and the Department has notified the Contractor of that determination in writing.

But all this is to get away from my original point—that there is has the potential to create confusion.

[Below is my lame original ending]

In some other context, the fix might have been to use a real subject and a more robust verb, changing There is one renewal option to Acme may renew. But here, as is often the case, the fix is more drastic. I propose the following:

If the parties elect to extend the term of this agreement, any such extension will be exempt from the competitive-procurement requirements of chapter 287, Florida statutes.

But given that it simply acknowledges what the law provides, it could be omitted.

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.