I signalled in this post that my task of compiling guidelines to the building blocks of contract language is largely done. But it will never be over, and here’s an example of that.
I recently encountered the formula this agreement allows. That sent me to EDGAR, where I found the following examples:
As a general form of contract, this Agreement allows the parties to contract multiple projects or services through the issuance of Statements of Work without having to renegotiate the basic terms and conditions contained in this Agreement.
This Agreement allows for up to three (3) shipping destinations per batch of Product.
This Agreement allows a period of seven (7) days following Employee ’s signature on the agreement during which Employee may revoke this Agreement.
RUTGERS understands and acknowledges that this agreement allows FIRM to disclose to COMPANY information otherwise protected by the attorney-client and/or work product privileges, which privileges shall be maintained and protected under the “common interest” doctrine.
Why was I particularly pleased to encounter this agreement allows? Because This agreement allows Acme to is yet another messed-up alternative to Acme may. The fourth edition of MSCD lists in table 4 more than a dozen wordier and less-clear ways of saying Acme may. Spotting instances of this has been something of a hobby; see for example this 2017 post. I would have liked to have added this agreement allows Acme to to the list, but that will have to wait until the fifth edition.
I also searched on EDGAR for this agreement permits, but the examples I found don’t grant discretion. Instead, they allude to the possibility of discretion being granted elsewhere in the contract:
Whenever this Agreement permits or requires the Funds to give notice to, direct, provide information to State Street , such notice, direction, or information shall be provided to State Street on the Funds ’ behalf by any individual designated for such purpose by the Funds in a written notice to State Street.
… or in the event that this Agreement permits any determination by the Owner Trustee or is silent or incomplete as to the course of action that the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice …
To the extent this Agreement permits any additional acquisition of shares of Common Stock by Piton or any other Stockholder , Piton and the other Stockholders further collectively represent that …
In this context too I’d use Acme may, as in If under this agreement Acme may. I don’t think anything is gained by limiting use of may to contexts where discretion is granted, but I’ll mull that over.
3 thoughts on ““This Agreement Allows””
Isn’t the first “this Agreement permits” different from the others? It has “or requires” next.
I think what it really means is more like, “For the Funds to validly give notice, direction, or information to State Street, the person giving that notice, direction, or information on the Funds behalf must be a person whom the Funds have previously designated to State Street by notice.”
I agree that the first example differs in having ‘requires’ after ‘permits’, but I don’t see why that suggests avoiding ‘may’, as in ‘whenever under this agreement the Funds may or must give notice’.
Nevertheless, in my redrafting, ‘may’ disappears, too:
The Funds shall give any notice this agreement requires or permits to State Street by an individual the Funds have designated in a written notice to State Street. ‘Notice’ means ‘notice, direction, or information’.
I’ve also pondered the anthropomorphism of having ‘the agreement’ allow, permit, prohibit, and require things, and conclude that its concision trumps the alternatives.