When an Entire Provision Is Redundant

I’m used to thinking of redundancy (actual or potential) as occurring at the level of parts of speech. For example, in doublets or triplets of adjectives (null and void). Or verbs (indemnify and hold harmless). But I’m becoming more attuned to redundancy of entire provisions. (By provision, I mean a complete utterance, whether a sentence or part of a sentence.)

With my LegalSifter hat on, last week I looked into how contracts say that having the buyer inspect goods doesn’t affect the seller’s warranties relating to the goods. In this purchase order (hi, Ready Pac Foods!), I encountered the following sentence:

Inspection, test, acceptance or use of the Goods furnished under any Order shall not affect Seller’s obligation under this warranty, and all warranties shall survive inspection, test, acceptance and use.

The first part of the sentence (in red) says that having the buyer inspect goods doesn’t affect the seller’s warranties relating to the goods. But guess what—so does the second part of the sentence (in blue), just in a more legalistic way. (Incidentally, I think use of warranty in the singular in the first part and in the plural in the second part is a glitch.)

The immediate implication is that half the sentence is redundant, so the reader is forced to do unnecessary work.

But wait, there’s more! When you have two provisions that say essentially the same thing, they can conflict in unexpected ways. See this blog post from earlier this year about a fight over how an establishing-jurisdiction provision related to a consent-to-jurisdiction provision.

And thanks to the “canon of construction” that every word and every provision is to be given effect, litigants and courts might be inclined to attribute distinctive meaning to what began life as redundancy. A good example of that is the significance attributed to no-reliance language at the expense of other ways of saying essentially the same thing; see this 2011 blog post.

So to avoid wasting the reader’s time, or worse, eliminate redundant provisions.

(By the way, if you’d like to find out more about how LegalSifter is building my expertise into their artificial-intelligence products, email me.)

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.