Using “Intend” in Recitals

In MSCD and in this 2011 post I discuss using want in recitals instead of wish or desire. But how about intend?

I hereby propose a distinction in how to use intend in recitals.

First, don’t use intend for matters addressed in the contract. For that, stick with want or, if you prefer, desire or wishintend isn’t a good fit. You intend to do that which is largely or entirely within your control; by contrast, nothing happens in a contract until the parties sign. So I’d use something other than intend in each of the following four examples from the SEC’s EDGAR system:

The Depositor intends to sell Certificates, to be issued hereunder in multiple Classes, which in the aggregate will evidence the entire beneficial ownership interest in the Trust to be created hereunder.

(B) Seller and the Local Sellers intend to sell the Business to Purchaser and its Affiliates pursuant to the terms and conditions of this Agreement and the other Transaction Documents.

WHEREAS, the Parties entered into a Contribution Agreement dated October 16, 2013, and the Parties intend to amend and restate such Contribution Agreement in its entirety as set forth herein;

WHEREAS, the Parties intend that AcquireCo be merged with and into Auxilium, with Auxilium surviving such merger on the terms and conditions of this Agreement (the “Merger”).

But it makes sense to use intend if you’re referring to matters that are addressed in some other contract or are otherwise outside the scope of the contract in question, as in the following examples:

WHEREAS, pursuant to the terms of the Supply Agreement, the Parties intend to supply to each other certain Products; and

WHEREAS, Seller intends to convert the Company and all of its Subsidiaries (as defined below) from corporations to limited liability companies;

A. Producer owns Oil and Gas Interests and intends to drill and complete Wells for the production of Hydrocarbons in the Initial Service Area and may from time to time own Oil and Gas Interests and may drill and complete Wells for the production of Hydrocarbons in other areas.

More generally, it’s usual to refer to courts looking to recitals for expressions of the parties intent. But that’s in the context of the contract having been signed, so it’s unrelated to use of intend in recitals.

I hope this is nitpicky enough for you …

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.