This Is What Confusion Over “This Agreement” Looks Like

Ah, you never know what you’re going to dredge up from the murky depths of Edgar!

As regular readers will know, two recommendations I make in MSCD tend to cause brains to implode. One of those recommendations is that you dispense with using this agreement as a defined term. (The other recommendation is that you use states instead of represents and warrants when circumstances permit it; see this article.)

In my seminars I say that one never encounters a situation where the reader might be confused as to whether a given instance of this agreement refers to the contract as a whole or some portion of it. Well, thanks to a “separation letter and general release agreement” I happened to encounter (PDF here), I have to be a little more nuanced about that.

The drafter did the conventional thing and used this agreement as a defined term:

But behold the following, from later in the contract:

The drafter used “this confidentiality agreement” to refer to that section! That’s analogous to the kind of use of this agreement that I’ve said I’ve never seen! Imagine if the drafter had elected to be a bit more concise and had said “this agreement”!

Well, excuse me if I don’t use this as a reason to go back to the drawing board. Here are my reasons for standing pat:

First, using this X agreement to refer to part of a contract is profoundly unorthodox.

Second, using just this agreement to refer to part of a contract would be even more profoundly unorthodox, as the reader wouldn’t be given any indication exactly what is being referred to.

And third, for any problem to arise you’d have to have a drafter who is sufficiently attuned to modern drafting to use this agreement—lowercase a—to refer to the entire contract yet clueless enough to also use this agreement to refer to part of the contract. If such a bizarre creature exists, I don’t have any sympathy for them, and I’m sure as heck not going to pervert my recommendations in hopes of saving them from themselves.

I suggest that the explanation for the contract that prompted this post is that it is afflicted with the release-language disease. Release provisions—highly risk-averse and often drafted by litigators—are reliably craptastic.

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.