What Was This Drafter Trying to Say?

In the wee hours I saw this post on LinkedIn by Olly Buxton, in which he says, “This from someone who has obtained a professional qualification dedicated to the clear, logical and precise use of the English Language.” By “This,” Olly is referring to the text in the following image:

This sentence is, um, deeply problematic on several levels. Although I’m working in the dark, not having the statements of fact in question, here’s what I think the drafter was trying to say:

3. Statements of Fact

Each party will be deemed to have made in this amendment the statements of fact that that party made in the Original Agreement, with all instances of “the date of this agreement” being deemed to refer to the date of this amendment and all other instances of “this agreement” being deemed to refer to the Original Agreement as amended by this amendment.

Can you improve on that?

Incidentally, this sort of arrangement won’t work if the original statements of fact refer to matters that are unlikely to have remained unchanged. For example, a list of contracts to which Acme was party on the date of the original agreement might well have changed by the time the amendment is signed. So this works best with statements of fact that say everything’s OK—for example, a “No Violation” statement of fact.

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.