The problem with the word usually isn’t just that it’s vague. Instead, it’s that it exhibits the free-floating vagueness that we previously encountered in substantially (see this 2011 post)—vagueness uncoupled from a reasonable-person standard. How often does something have to occur for it to occur usually? Who knows. I’m not comfortable with that level of vagueness.
A suitable fix might be to delete usually:
Tenant will not, without the written consent of Landlord, use any apparatus or device in the Premises … that will in any way increase the amount of electricity or water
usuallyfurnished or supplied for the use of the Premises for general office purposes …
But sometimes additional tinkering might be in order:
If Landlord shall from time to time reasonably determine that the use of any cleaning service in the Premises … is in an amount greater than
usually attendant upon the[read is reasonable for] use of such Premises as offices, the reasonable cost of such additional cleaning services shall be paid by Tenant to Landlord as additional rent, within twenty (20) days after demand.
The Executive shall have all of the powers and duties
usuallyincident to the offices of Chairman, Chief Executive Officer and President [add as specified in the Company’s bylaws].
Each Party will keep its business and properties insured at all times against such risks for which insurance
is usually[read would be] maintained by reasonably prudent Persons engaged in a similar business.
(All the examples are from EDGAR and haven’t been sanitized.)
8 thoughts on ““Usually””
I’m uncomfortable just deleting “usually” or words to similar effect without replacing them with something more meaningful, if possible. What’s usually at the back of these terms is that (in your lease example) a landlord normally furnishes a service but doesn’t want it abused. From a tenant’s standpoint, just what constitutes abuse is paramount. If you say “more than 25% in excess of the average” or something like that, it invites (from the landlord’s perspective) the tenant constantly to go up to that line. If you leave it without a qualifier, the tenant worries that the slightest transgression might result in termination of the lease (which wouldn’t happen unless the landlord were looking for a reason, which it sometimes does). So the vagueness of “usually” and similar words can be deliberate, a way to bring up a sore point without having to go to the mat over it every time. You’re right that it’s vague, but it’s sometimes desirable to permit vagueness as a way of facilitating operational interactions between the parties (and once upon a time, you made allowances for this sort of thing, if I remember correctly).
Sure, vagueness is necessary when a flat obligation doesn’t work. But as I explained in my post on “substantially,” this is a particularly problematic kind of vagueness. I think one can do better. I invite you to suggest an alternative to “usually” in my first example.
How about “…that will in any way increase the amount of water or electricity furnished or supplied beyond that reasonably required for use of the Premises for general office purposes…”
I’m not sure I understand the point of this provision. I assumed that it was intended to avoid having the tenant, for example, install solar panels on the roof. If that’s the purpose, I don’t see the point of having any qualification, whether using “usually” or “reasonably.”
I very rarely encounter words such as usually and generally in contracts. Excuse the flippancy, but my solution in your first example would be to instal water and electricity meters and make the tenant pay their own utility bills. This would be cheaper in the longer term than getting into a dispute over whether usage is usual.
I usually see (and use) “customarily” rather than “usually.” “Usually” seems to connote “more often than not” (and perhaps more often than that…), while “customarily” seems to convey something like “reasonably consistent with past practice” (which might be a better solution itself).
“Customarily” strikes me as about right in terms of balancing vagueness and precision when precision is either impossible or (as I mention above) undesirable.