Thoughts on Delivery “By Hand”

In this 2012 blog post I explain why the phrase personal delivery is confusing. My conclusion:

So the moral of this case is, Never say in a contract “deliver X personally,” “by personal delivery,” “personal delivery,” or any variant.

But in this earlier post on the subject, I say this:

Instead, what the phrase “personal delivery” seeks to convey is that a contract party may make its own informal arrangements for delivery rather than delegating the task to a transportation company. I suggest that the phrase “deliver by hand” expresses that meaning more clearly.

But I’m no longer sure about that.

What does delivery by hand mean? The Cambridge English Dictionary says it means “to take something to someone yourself or send it by courier.” What does “yourself” mean when it comes to giving notice? The party (if an individual) or an employee of the party? What about a cousin of an employee of party? And what does courier mean? Is UPS a courier?

So I think by hand is about as unclear as personal delivery. I think by hand and personal delivery are relics of bygone days, when your choice was mail, delivering it yourself, or getting fancy and paying someone to go from point A to point B. The advent of the delivery-industrial complex (FedEx, UPS, Amazon) changed all that. Yet personal delivery and by hand live on in contracts, much like telex, telegram, and facsimile do.

Here’s an alternative approach: One means of delivery is by transportation company delivering a tangible copy using a tracking system, in which case delivery is effective when the tracking system says it has been delivered. Another means is delivery of a tangible copy by any other means (an employee on foot or a bike messenger, say), in which case delivery is effective when someone at the recipient signs for it.

What do you think?

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.

8 thoughts on “Thoughts on Delivery “By Hand””

  1. I think that “by hand” is, in context, as clear as anything else one can say, despite the potential overlap with courier delivery (but by providing specifically for the latter one likely clears up any confusion, plus see below). I don’t see how “by foot” in an improvement over “by hand.”

    “Any other means” could include electronic, but I think electronic deliveries deserve their own provisions. I also wouldn’t make delivery confirmation dependent on the recipient, since even in the olden days the carrier could sign an affidavit of delivery (which is essentially what the courier services do), and if the recipient is minded to contest notice, it’s as easy to do so in the face of a FedEx receipt as a personal affidavit, though in all probability the former’s credibility will be higher. In fact, making confirmation methods consistent helps erase any potential accidental disability accruing to using one method over another.

    While telegram and telex are no longer with us, delivery by fax is, alas, still a possibility that should be addressed or excluded (its one advantage over email is that you will nearly always get a delivery confirmation without having to think about it).

    And oh yes, FedEx, DHL, et al., are not transportation companies, they’re delivery services. JetBlue, Greyhound and Amtrak are transportation companies.

    • Email is treated separately. I can exclude fax by excluding any means not specified. And yeah, “delivery organization” might be better. (“Organization” because I want to include postal services.)

      I don’t want to have to distinguish between, say, bike messenger and certified mail. Tangible copy? Signed for on receipt? You’re in.

      • I think that Mark’s comment below is – for the US at least – why postal is always a separate method: it’s a universally accepted form of deemed notice. That’s not always or even the case with courier services in my experience: too many packages that require signature get delivered without signature (I’m looking at you, wine deliveries!). That makes companies uneasy about being held to courier notice they didn’t get.

        (And with the current post office troubles, it might not be outrageous to demand something else, or explicitly create a tiered notice system for mundane vs exceptional notices. What a hassle.)

  2. I think that by hand can go away, sure – but I’ve stuck with “personal delivery” as my stand-in for “any other method.” The key, as Vance notes, is when notice is deemed given. I lump anything other than mail (deemed delivery x days after mailing) or courier (either on receipt or on signed delivery notice or x days after delivery) into the “personal delivery” bucket and make them all valid on receipt.

    I do the “receipt” piece to make it clear that these fuzzier alternatives are meant to simplify commercial relations and not to trap folks with technical interpretations (I’m recalling the vast comments on email notice!). If you actually got the fax, then it’s notice. There is probably benefit to update my language to use “mail, courier, or any other method.” If it’s only deemed “notice” on actual receipt, it’s hard to argue that a telegram or a fax or an email or a letter sent by bike messenger (from the LinkedIn comment) should NOT be notice if it’s actually been received: where’s the prejudice? Any restrictions on who can get the notice get fixed in the address and attn: elements, which avoids worries about someone else’s business practices for receiving deliveries or visitors.

    To me, this simplifies things because if I send you an email with my “notice” in it, and you respond to that email, then you actually got it. I don’t get snookered (as a generic business person) thinking that I gave you actual notice when I didn’t give you Notice under the agreement. That focus on the technical notice provision is almost entirely absent in commercial enterprises unless there’s a major issue – breach, renewal, termination – where, in most cases, lawyers are likely to be involved. Then, everyone wants to be able to prove Notice or have guaranteed effective notice (which is usually only by mailing).

    • I put all tangible copies in two buckets: simple. And I have no problem eliminating fax, etc. Of course, if you acknowledge a fax in writing, you received it. Maybe that’s worth saying.

  3. I think you are right to be unsure of ‘by hand’, but I also think you can’t open the can of notice worms only that far.

    The issue of actual notice versus constructive notice rears its ugly head: the notifying party wants to be able to take simple, easily verifiable actions that bind the party to be notified whether it gets actual knowledge or not.

    The party to be notified tends to want not to be bound until one or more specified individuals have actual knowledge of the content of the notice, ‘in hand’ receipt of the notice instrument, or both. When it matters, bargaining power usually determines where on the spectrum the parties draw the line.

    Corporations and other artificial persons don’t have hands (or brains), so the drafting issue usually winds up being the choice of a mutually agreeable legal fiction about what ‘notice’ is.

    I like the ‘belt and braces’ approach:

    (1) some form of sending paper through the world, coupled with

    (2) sending an e-mail copy to one or more addresses.

    Notice is “deemed” to have occured when, or at a specified point after, the later of the two sendings has occurred.

    Once in a while both sendings may fail and the addressee may lack actual receipt, actual notice, and actual knowledge, but the risk is small and the evil rare enough that I use the approach even when I represent the party to be notified.

    Use of ‘by hand’ in a corporate context requires identifying the delivering hands, the receiving hands, both, or neither. I think the agency issues make the drafting messy, so I prefer the ‘double-breasted’ method above.

  4. In my (construction and engineering) industry, sometimes owners and contractors work in an integrated office (in, remarkably, an “integrated project team”). If one party needs to deliver a notice, one party’s rep can just walk on over and hand it to the other party’s rep. No courier required! How would you describe that?


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