Using “Breach” as a Verb Instead of a Noun

As a credo, you could do worse than “Abstract nouns, bad! Verbs, good!” Using verbs instead of abstract nouns allows you to be more economical, and it ensures that you don’t play that favorite game of drafters, “Hide the Actor.”

The word breach can be both a noun and a verb. I’ve improved the following examples by replacing the noun form of breach with the verb. (The deleted language is strikethrough; the new language is in brackets.)

The Executive acknowledges that in the event of a breach or threat of a breach of the provisions of [if she breaches or threatens to breach] section 4, 5 or 6 …

If the Executive commits any breach of this agreement that [breaches this agreement and that breach] remains uncured for a period of 14 days following written notice of that breach …

… to the knowledge of the Company, no party to any license of the Company Licensed Intellectual Property is in breach thereof or default thereunder [has breached or is in default under that license].

The Borrower shall apply the proceeds of each Loan solely for the Borrower’s general corporate purposes so long as that application … does not result in a breach of [does not breach] the Merger Agreement.

Before obtaining the Requisite Company Vote, if the Company receives an unsolicited, written, and good-faith offer regarding a competing transaction from any person that did not result from a breach by the Company [breaching] section 3.4 …

But in the right context, the noun breach is fine. For example, I’m OK with the following extract.

… any litigation or claim threatened or initiated by MART Securityholders against MART or any of its directors and officers arising out of execution of this agreement or the transactions contemplated hereby (except as it relates to breach of this agreement by MART); …

Supplemented 30 May 2016

To follow up on A. Wright Burke’s comment to this post, Acme breaches could be regarded as overbroad, as Acme might “cure” a given breach such that it is no longer in breach but nevertheless did in fact breach. Longtime readers will know that I’m not a fan of “cure” (see this 2014 post), but if you do provide for the possibility of cure (using either that word of some other terminology), it would make sense to say that if a given breach is cured, that breach will be deemed not to have occurred.

Conversely, Acme is in breach could be regarded as unduly narrow, as it could be argued that Acme breaches refers to an event and Acme is in breach refers to a status. According to this argument, Acme might breach a contract by (1) selling specified assets and (2) no longer being in good standing in its jurisdiction of organization, but a month later it would only be in breach with respect to the second issue, as only that issue pertains to an ongoing status. As I prefer using the verb, this possible interpretation doesn’t pose a threat, but I’ll nevertheless suggest that that argument is too literal-minded to take seriously.

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.