Using “Is” as a Definitional Verb? Please Gawd No Stop

 

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.]

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.