Variations on “Breach”

Choices in contract drafting come in big and small packages. Today, let’s think small; let’s think breach.

Count Noun or Mass Noun?

Consider the following:

It will not constitute [a breach] [breach] of the Recipient’s obligations under this agreement for the Recipient or any of its Representatives to disclose …

Both of the bracketed alternatives work. How so, you ask? Well, the first alternative features breach used as a count noun, in that it can be quantified by a number. Just as one can say Joe ate five cookies, you can say Acme committed multiple breaches of its obligations under the WidgetCo contract.

By contrast, in the second alternative breach is used to express an abstract idea. As such, it’s used as a mass noun, like destruction. This kind of mass noun cannot be used in the plural and doesn’t take an indefinite article—you don’t say five destructions or a destruction. That’s why breach also works without the indefinite article a.

A noun that works as both a count noun and a mass noun? Yep; go here for more on that.

Which do I prefer? The approach that allows me to eliminate one word, of course—I’ll use breach as a mass noun, thank you.

Count Noun or Verb?

But wait, there’s more! Don’t forget that breach is also a verb. In some contexts treating breach as a verb instead of a count noun affords even more economy. Consider the following:

… its entry into this agreement and its performance of its obligations under this agreement do not … conflict with, [result in a breach of] [breach], or constitute a default under …

The first alternative uses breach as a count noun; the second uses it as a verb. I’m going with the verb.

Mass Noun or Verb?

Let’s now consider the winning version of the first example, using a mass noun, and compare it with using a verb (and making other conforming adjustments):

Mass Noun

It will not constitute breach of the Recipient’s obligations under this agreement for the Recipient or any of its Representatives to disclose …

Verb

It will not breach the Recipient’s obligations under this agreement if the Recipient or any of its Representatives discloses …

I reckon I’m going with breach as a verb here, too, although the It will structure is awkward.

“In Breach”

Consider this example:

Any purported assignment or delegation [in breach of] [that breaches] this section 20.4 will be void.

The first alternative consists of the mass noun breach used in the phrase in breach of; the second alternative uses the verb breach. I suggest that here, too, the verb is the simpler alternative. [Updated May 3, 2015: I’ve changed my mind: it’s a bit awkward to say that an assignment breaches something, as opposed to saying that a party breaches something. At least that’s what I currently think.]

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I hear some of you shouting, “Is there no end to the pointy-headed freakishness that you inflict on us!” To which I say, English offers you choices. Given that contract drafting benefits from economy and consistency, it makes sense to choose that which is most concise and stick with it resolutely.

What do you think?

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.