Using a Term of Art in a Section Heading, Offering Detail in the Text

Last week I saw this in a contract:

Subcontracting. Acme may engage employees, independent contractors, consultants, or other persons or entities (collectively, “Assistants”) to aid Acme in performing Acme’s obligations under this Agreement, so long as those Assistants abide by the terms of this Agreement, specifically Section 7 (Confidentiality) and, if required under HIPAA, the HITECH Act, or any other state or federal regulation, enter into a BAA with Acme and agree to restrictions that apply to Acme with respect to PHI.

It caught my attention because it uses a term of art—subcontracting—in the heading, but it doesn’t use it in the text of that section. Instead, it articulates, in more detail, what subcontracting consists of. (I offer no opinion on how well or poorly it does that!)

So that section does what I say you shouldn’t do—it says the same thing twice. But on occasion, I’ve endorsed that approach. In considering getting rid of the word indemnify, MSCD says “Instead of eliminating any reference to indemnification, an interim step might be using indemnification just as a heading.”

And regarding the word warranty, MSCD says, “And even if you don’t use warrants in a provision … , it would be appropriate to give it the heading Warranty or Warranties if that’s what the section consists of.

MSCD also endorses the equivalent approach in a different context. The discussion of coupled with an interest suggests that in addition to using that phrase in a provision, you explain the implications. It goes on:

By adding explication to the term of art, this provision makes it clear that whether the power is coupled with an interest is a matter of law rather than something that can be agreed to by the parties. It would also ensure that the parties understand the implications of the power’s being coupled with an interest.

So if you’re unable to omit an unclear or insufficiently specific term of art because readers would expect to see it, consider saying the same thing twice.

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.

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