Here are two autonomous definitions:
“Salvage” is cargo which has been damaged, alleged to be damaged, refused or undeliverable that has been sold, disposed of or turned over to a competent salvage agent for selling after proper On–Hand notice has been given.
“Confidential Information” is any information that …
Both use is as the definitional verb. That’s unorthodox. That’s presumably why it has taken me twenty years to get around to writing about it.
Use of is might seem unobjectionable, but I see four problems:
First, it works OK with mass nouns like salvage and confidential information but would otherwise be ungrammatical in the absence of an article. For example, “Continuing Director” is any person who … sounds stilted compared with A “Continuing Director” is any person who …, but the latter would be unorthodox. Using means doesn’t present this issue.
Second, you’d have to switch to are when the defined term is in the plural: “Members” are the members of … That adds an avoidable variant. By contrast, means is the correct choice for both singular and plural.
Third, is works OK if you’re explaining the meaning of an actual thing, but that’s not the way defined terms work. Instead, a defined term is simply a label for a longer concept: the starting point is the definition, not the defined term. I think that’s expressed better with means.
And fourth, don’t change that which ain’t broke! Given the endless dysfunction in traditional contract language, it’s massively obtuse to go out of your way to ditch a functioning usage (means) in favor of an unorthodox and suboptimal alternative (is).
Do you see is used as a definitional verb?
[Update 23 November 2019: The examples at the top of this post are real, but I adjusted them by adding quotation marks. I did so because I didn’t want to complicate matters by adding to use of is another unorthodoxy, namely omission of quotation marks. But for all I know, use of is might generally be accompanied by omission of quotation marks, as if the drafter somehow thought they weren’t really creating a defined term.]
This read very fogy to me.
1. I’m not sure it’s ungrammatical with the term defined in quotes.
2. Is/are is fundamental English. If that’s inconvenient, English is inconvenient.
3. Definitions tap into the very natural mechanism that gives words meaning in language. There’s a short bit of speech and long bit of speech. Where we hear or say the short bit, we mean the long bit. “To be” verbs make that connection just fine. There’s no more common verb to do the job.
4. I’m guessing “If it ain’t broke, don’t fix it” is the most common retort to all your suggestions for improving contract language that veer away from common practice. The cliche is cover for a lot of unexamined habit. Turning it around, if “is” ain’t broke, we likewise shouldn’t deprecate it.
Overall, I’d classify all your hang-ups as style quibbles, not substance quibbles. There’s no question in my mind how a court or lay reader would apply the “is” definitions you quoted.
They don’t fall in line with your prescribed style or any prevailing legal style I’ve seen in the wild. But the fact that they work, despite their unorthodoxy, points to the real substance of the matter: language, how it plays out in a dispute, and whether people can figure out how it will play in a dispute before actually going to the mat.
Focus on the substance of how contract language actually works is the gateway drug to all the fine substantive work you’ve done on the drafting craft. Choice of verb for autonomous definitions is beans from there.
OK, here are my five eurocents on this.
1/2 I would not say it is ungrammatical as it is still ONE term – singular. For example: “Members” is/means. While “Murders” and “Member” are/mean because we have two things (terms) – plural. Defined terms when mentioned for the first time would not need any articles. When mentioned the second time and so on, yes, it should be the definite article that is attached in front of it.
3 I don’t really see a difference here because you are referring to the defined term under the contract not the actual thing in real life. In other words, “Members” is not the same as members. So for me, both options are OK.
4 I have to agree here. If “means” is the more popular variant used in definitions (I have not checked that), then I am OK with it. Also, personally for me it sounds more natural than “is”, because we are defining terms. And a term MEANS something, not IS something.
So I am sticking to “means”, but, if it was the other way around and you would go with “is” as the correct variant, I would not follow for the same reason why I got the MSCD – I wanted to improve my contract language, fight all the unnecessary things that do not say anything (like for the “avoidance of doubt”) and give a human face to the useless jargon. Changing IS for MEANS is really not in the same heavyweight category and does not seem as big of an issue to have a fight about it.
I also understand why IS would seem a better choice to some. It’s the principle of language economy – if there are two words that mean the same, the shorter one will win eventually, just because it is shorter and takes up less space on paper and in the speech.
Thanks for playing! But I say you’re mistaken in saying that “Members is” is grammatical.
And regarding my third point, the idea is that it’s fine to say A chair is something you sit on, one wouldn’t say X is something you sit on: X is a label, it’s not the thing itself. Using means would be the more sensible choice.
More generally, I wouldn’t use is in this context in everyday English either. And in terms of contract usages, if I’ve gone 20 years without seeing it, that means it’s an aberration.
What you said seemed the plainest common sense to me, and I’m stunned at the pushback, especially from Kyle Mitchell, who casts a long shadow in this neighbourhood.
My take is that ‘murder means killing a human with malice prepense’ is the equivalent of ‘The term (=label) “murder” means killing a human with malice prepense’. Pellucid.
Change it to ‘the term “murder” is killing a human being with malice prepense’, and you’re describing a term in the process of killing someone. Silly. Why cast aside the ‘means’ formulation that avoids such fog?
I can’t tell you the charge it gives me when Kenneth A. Adams says things very close to ‘the vast majority of traditional contract language, such as the definitional verb ‘means’, is not dysfunctional and is hugely preferable to inferior novelties. Stick with the traditional language!’
I also use the rule of thumb to prefer a shorter word to a longer when the shorter will do (so I use ‘duty’ instead of ‘obligation’), but for the reason above I don’t think ‘is’ will ‘do’ in place of ‘means’.
A useful perspective. But I’m not sure where that “vast majority of traditional contract language” bit comes from; I can’t endorse it!
Seems like an existential crisis. I guess the archaic form of “is” would be “Salvage shall be cargo…”
I agree with you.
“Equal to” has different meaning than “defined as”. For this reason, different symbols are also used in mathematics for this purpose (“=” vs “:=”).
The use of the word “is” makes the sentence in my ears a statement (that can be right or wrong).
The attribution of a meaning, on the other hand, is formative. Black can mean white, if I want to, but black is never white.