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.)
2 thoughts on “When an Entire Provision Is Redundant”
1/ Clause 1 refers to ‘this warranty’, but clause 2 refers to ‘all warranties’. Difference intended?
2/ Clause 1 leaves warranty unaffected by ‘inspection, test, acceptance *or* use’, but clause 2 says warranties survive ‘inspection, test, acceptance *and* use. Difference intended?
3/ Has the distinction between repetition and redundancy gone by the boards?
4/ Your hostility to canons of construction continues to puzzle. It reminds me of judges who disregard contract definitions on the ground that they’re ‘boilerplate’ that the parties use unthinkingly and not signs of the parties’ actual intent, which must be found elsewhere.
5/ Devaluing standards of interpretation established *before* the dispute arises and upvaluing case-specific ones that judges make up *after* the dispute arises assures more result-oriented adjudications.
6/ The case against canons is not in principle, but in particulars, like the flaw pointed out in the jokey saying that ‘For every canon of construction, there’s an equal and opposite one’. By analogy, one thinks of adages: ‘Haste makes waste’, but ‘He who hesitates is lost’.
Stay well. –Wright
Howdy. I hope you’re doing OK in these insane times.
1/ I suggest in the post that it’s a glitch.
3/ *contemplative look* I’m not sure one can call this repetition, as it’s involves saying the same thing differently.
4/ I deleted my grouchy “idiot”. Canons of construction are arbitrary, and judges wield them erratically.
5/ Not sure I understand. Linguistics doesn’t vary depending on the litigation context.
6/ Yes, any critique has to be based on evidence. But that doesn’t mean I have to trot out the particulars whenever I feel like griping about canons of construction!