Yesterday I got a call from a reader inquiring about verb use in my recommended form of introductory clause. I love that kind of inquiry.
More specifically, he pointed to the introductory clause in MSCD sample 1. It begins as follows: This asset purchase agreement is dated May 3, 2008, and is between … He wondered whether it would be more economical to say instead This asset purchase agreement dated May 3, 2008, is between … , thereby eliminating a verb and the word and.
I said that his proposed language could be read as if the date of the agreement was something established outside of the contract, with the introductory clause simply acknowledging as much. I suggested that my language is more consistent with the parties giving the contract a date. That may be why I think my version simply reads a bit better.
In any event, you want the introductory clause to include a verb. Some drafters do without: This asset purchase agreement dated May 3, 2008, between …
8 thoughts on “Verb Use in the Introductory Clause”
Or alternatively: This asset purchase agreement is made on [or as of] May 3, 2008, between…
Robert: I prefer is dated, as being simpler. For one thing, one doesn’t as a general matter refer to parties’ making an agreement. And unlike is dated, is made is in the passive voice. The active-voice equivalent would be The parties make this asset purchase agreement, which shows more clearly the problem with the tense. Ken
Ken, I agree with your response to Robert but you don’t address what I think is his more important point – eliminating the “and is” immediately preceding the word “between.” It seems that those words add nothing. What do you think?
David: If you use is dated May 3, 2008, I think the introductory clause reads awkwardly if you drop and is. I’m all for cutting words, but not at the expense of awkwardness. And it’s hardly worth worrying about two words, given the considerable redundancy that you can expect to find in any given contract. Ken
Regarding the last paragraph of Ken’s original post: The absence of a verb in the opening paragraph is a relic of an older style of drafting in which an agreement was really one long sentence. The missing verb is “witnesseth,” as in
“This agreement dated 31 January 1933 between party 1 and party 2,
“That, whereas party 1 and party 2 want to agree to something,
“NOW, THEREFORE, in consideration of good and valuable stuff, the parties hereby agree as follows . . . .”
In that style, there really shouldn’t be a period anywhere before the end of the document. It was difficult to read, but grammatically correct, in an archaic sort of way.
Of course, some folks started putting periods at the end of the first paragraph and still left the verb out of that paragraph. (There could be a doctoral dissertation comparing the retention of vestigial elements in, say, the evolution of legal style and the development of certain liturgical practices. But I digress.)
Ken, I don’t understand your response to the original inquiry you received. How the absence of “is” before “dated” leads to a conclusion that the date was established outside the contract escapes me (as does why that would be relevant). I prefer the reader’s approach, but would add a comma before “dated”, so the clause would read: “This asset purchase agreement, dated May 3,208, is between…”. However established, there is no confusion about the date of the agreement.
On 3 May 2008, Party A and Party B agree…
My impression is that “is dated” in Ken’s version should be read to mean “is the date the parties have affirmatively selected to make this contract.” Only in rare cases would it be of any great legal consequence whether the date selected was the result of deliberation or happenstance. But it seems generally more accurate to indicate that the act of contracting on a particular date is intentional (even if the date may not have any special importance at the time or even subsequently) as opposed to suggesting inadvertently that the date was randomly visited upon the parties from without.