When the Definition Is the Same As the Defined Term

Today I tweeted this image:

The highlighted portion is of interest because the definition (The standstill period) is the same as the defined term (the “Standstill Period”). That doesn’t make sense: the whole point of defined terms is that they allow you to express a longer concept more concisely and consistently than you would otherwise. If the defined term is the same as the definition, you’re not achieving any economy. Instead, you’re adding clutter in the form of the defined-term parenthetical, and you’re forcing readers to refer to a definition that serves no purpose.

Longtime reader Art Markham chimed in:

In other words, Art says that creating the defined term will have the effect of sending the reader back to section 2. I’m grateful to Art for making me take another look at this, but I’m not convinced by his reasoning. And generally, I’ll go for “pure drafting logic” every time :-)

What would I do? Well, I wouldn’t just delete the defined-term parenthetical. Calling the period in question the standstill period is to imbue it with meaning by proxy, given that the standstill implications are stated in the next sentence and the tabulated enumerated clauses that follow. That would be odd.

You could instead use an autonomous definition: “Standstill Period” means the period from the date of this agreement through the date of the 2018 Annual Meeting or 31 December 2018, whichever is earlier. That’s what I suggested in my tweet, but that would break up the text unnecessarily. Instead, I’d combine the two sentences into one and begin it as follows: During the period from the date of this agreement through the date of the 2018 Annual Meeting or 31 December 2018, whichever is earlier (the “Standstill Period”) ….

To return to Art’s point, my version would still result in the reader returning to section 2, but without the illogic of the current structure.

There you have it!

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.