The other day @bradykrissesq posed the following question on Twitter:
What is the legal significance of a contract requirement to “do all things”?
— Brady Kriss (@bradykrissesq) April 30, 2013
Although it’s not the most crucial drafting issue, Brady, this one’s for you …
Here are three instances of use of thing or things in contracts on EDGAR:
… each Grantor hereby gives the Collateral Agent the power and right … to do any or all of the following: … do, at the Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Collateral Agent deems necessary to protect, preserve or realize upon the Collateral …
Executive shall execute and deliver any and all documents and shall do and perform any and all other acts and things necessary or desirable in connection therewith that the Company or any of its affiliates may reasonably request …
You shall communicate to the Company full particulars of any Intellectual Property Right in any work or thing created by you …
A drafter who uses thing is presumably referring to either an act or a piece of tangible or intangible property. And that’s how I’d probably phrase it, rather than using, instead or in addition, the word thing.
Besides being utterly non-specific, thing also sounds a bit silly, as in everyday English you use thing when words otherwise fail you: “Please remove that … thing!”
While I’m at it, how about among other things? Again, from EDGAR:
WHEREAS, certain of the parties to this Agreement are parties to an Agreement and Plan of Merger, dated as of the date hereof (the ” Merger Agreement “), pursuant to which, among other things, the Company issued the Warrant to the Investor as the Representative (on behalf of the Sellers);
Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or MLV, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission.
Drafters use among other things to convey the same meaning as including. In the interest of not using different words and phrases to convey the same meaning, I’d use including instead.
“Among other things” is probably designed to provide an English version of the (arguably still only) Latin expression, “inter alia”. If it appears in a recital, I wouldn’t be too concerned about converting it into an “including” formulation.
I agree that this isn’t anything to worry about. But with my software-code mentality, I’d rather use consistent terminology to express a given concept.
My response, on reading the Merger Agreement quotation was to ask, why there is even a need for inclusion language there in the first place? What risk is the “among other things” intended to prevent? Surely no one would read that statement to mean that issuing the Warrant was the only thing in the Merger Agreement.
You’re right.
Thanks for the post, Ken!
I came across this in an IP assignment/ work-for-hire clause in an independent contractor agreement. It required the contractor to “do all things and sign all documents deemed by Client to be necessary or appropriate” to perfect the Client’s IP rights.
I agree that this isn’t the most crucial of issues, and it was easy enough to change this paragraph. I still can’t help but imagine that particular level of hell where developers are required to do all things and sign all documents for some long-lost client’s patent applications.
But is “all things” so different from “anything”? And is either more onerous than being more specific about all the things that might ever be required? I would want to say “reasonably deemed”, and make sure that the Client has to ask for it before the obligation arises. Aside from that, using a very broad word seems more like a drafting problem – a little vague – rather than something that will impose unreasonable obligations?
I’m not suggesting that you be more specific; I’m just not sure that “thing” is the most sober choice.