ContractsProf Blog has an interesting post by Stacey Lantagne (aka @StaceyLantagne) about a court case involving the phrase for a period of not less than X years. Here’s Stacey:
The dispute concerned a noncompete between a dance studio and Marik, one of its employees. The covenant not to compete stated that Marik wouldn’t engage in any similar business “for a period of not less than five (5) years,” and wouldn’t solicit any teachers or students “for a period of not less than three (3) years.” The parties were arguing over whether this language meant “five years” and “three years,” or whether it meant that the noncompete could extend past five and three years.
Unsurprisingly, the court held that in this context, not less than X years means X years. But I took a more general look at the subject; that’s what this post is about.
But first, for context, here are three ways of saying the same thing:
- not less than X [units of time]
- at least X [units of time]
- X or more [units of time]
Instances of not less than and its variants fall into two categories. First, they’re used in stating the duration of an obligation or a prohibition. (Stated a bit differently, duration of an obligation to do or not do something.) And second, they’re used in stating what duration is required to satisfy a condition.
The case Stacey wrote about shows us that not less than and its variants doesn’t make sense to state a prohibition: the suggestion that the prohibition could apply beyond the stated number of units of time doesn’t make sense. Well, the same problem applies when you use not less than and its variants in stating an obligation.
Here’s an example of that:
The Company shall retain copies of all such contracts, agreements, invoices, bills and purchase orders for a period of not less than six (6) years from the date thereof.
Instead, the obligation should apply just for six years. If the company wants to retain the records for longer than that, it’s of course free to do so.
Now here are some examples with not less than used in stating what duration is required to satisfy a condition:
An “Arbitrator” shall be any person appointed by or on behalf of either party or appointed pursuant to the provisions hereof and: (i) shall be … a licensed commercial real estate broker with not less than 15 years experience representing landlords and/or tenants in the leasing of high tech or life sciences space in the greater Raleigh/Durham metropolitan area … .
… provided that (1) such new leases cover lands in the Designated Area and cover geologic depths that include all of the Target Zone or Target Zones being replaced and have a paid-up primary term of not less than one (1) year …
Thereafter, this Agreement shall be renewed for consecutive three (3) year terms, provided that Owner and Manager mutually consent to each such renewal not less than one (1) year prior to the end of the then-current term.
Whether the condition is satisfied doesn’t involve ongoing commitment. Instead, the question is whether at a given moment the duration of whatever it is meets or exceeds the stated minimum. So in this context, not less than and its variants work fine.
So, to sum up: In language of obligation or prohibition, don’t use not less than and its variants in stating units of time. But in stating what duration is required to satisfy a condition, feel free to use not less than and its variants.
And guess what: use of not more than in references to time requires a different analysis. And use of not less than and not more than other than in references to time also requires a different analysis. I bet you can’t wait for those blog post.
I think ‘at least a year’ and ‘a year’ in obligations and prohibitions express two different ideas.
If Acme wants contractors to give a guarantee to tenants of at least a year, Acme surely has no objection if contractors give tenants a guarantee of two years.
The formulation ‘at least a year’ makes clear that the contract allows contractors to give longer guarantees, while the formulation ‘a guarantee of one year’ is silent on whether a longer guarantee is permitted. That silence leaves open the possible argument that a longer guarantee would be a breach.
OK, my bad: this isn’t an obligation, as the Tenant ’s Contractor and Major Tenant ’s Agents aren’t in fact party to the contract. I’ve deleted this example. Thanks.
I wasn’t going that deep. I meant just that the following two statements of obligation have different nuances as indicated:
1 The Company shall retain copies for not less than six years. (Implication: no duty to stop retaining them at the six-year point.)
2 The Company shall retain copies for six years. (Then what? Duty to stop retaining? Option to continue retaining? Version 1 is clear on the point, version 2 less so.)
Conclusion: version 2 is not an exact substitute for version 1. If the issue is a nothingburger, I’d use version 2 as shorter. If the matter needs to be nailed down, I’d use version 1 as explicit.