Last month I considered in this post the relative merits of shall not … unless and may … only if, the former negative, the latter positive. I ended up opting for the former, at least provisionally.
Now consider the following:
- An amendment to this agreement will be effective only if it is in writing and signed by both parties.
- An amendment to this agreement will not be effective unless it is in writing and signed by both parties.
- No amendment to this agreement will be effective unless it is in writing and signed by both parties.
The first is positive, the second is negative (with negation achieved by means of the verb), and the third is negative (with negation being achieved by means of the subject).
Which would you opt for, and why?
3. Clearest to reader.
But what makes it clearer?
In example 1, if you stop the sentence after “effective”, you have a statement of general effectiveness. For examples 2 and 3, you start with a statement of general ineffectiveness. I believe that 2 and 3 are clearer because it is more straightforward to comprehend a general rule, and take a bit out of it, than it is to comprehend a general rule, then comprehend (with “only”) that it isn’t a general rule after all, and then comprehend the conditions under which it might after all become the rule.
I don’t see much difference between 2 and 3. Example 3 seems more emphatic, which might have the effect of making the meaning clearer.
I’ll ponder your first point. Regarding your closing point, I suggesting that saying it’s more emphatic is too mushy. Here’s something more tangible: 3 is one word shorter than 2.
Agree with Mark as to choice and as to reason.
What makes it clearer?
Fewer moving parts.
‘No peace without justice’ trumps ‘peace only if justice’ for the same reason: less thinky.
I’ve not spotted anything seriously wrong with any of the three except the implied notion that you could have an ‘ineffective amendment’, which is a contradiction in terms, and an ‘effective amendment’, which is a redundancy.
I’m tempted to accept that vice (as you apparently do) to avoid saying, ‘No purported amendment will be effective unless in writing signed by each party.’ Still chewing it over.
Also wondering about ‘both parties’. If there are more than two parties, one must choose among ‘all parties’, ‘each party’, and ‘the party to be charged’. Not germane to the present question, though.
I agree with you about the “ineffective amendment”. “Purported amendment” would suffer the same problem in reverse – because it strongly implies that there is no amendment, “effective purported amendment” would be a mess. I would offer “This agreement may [only] be amended [only] by a written agreement signed by each party.” I like the presence of the word “agreement” because it makes clear that contractual rules still apply. (The placement of “only” is a whole new question, hence my diplomatic refusal to commit.)
However, this doesn’t necessarily seem helpful as a response to the question posed by Ken in the main post.
I can’t do “This agreement may be amended only by a written agreement signed by each party.” That’s language of limited discretion, and it implies a remedy if the parties breach by amending the contract orally. That doesn’t make sense. As such, this is a good example of the value of categories-of-contract-language analysis.
No, that’s fussbudgetry. Get rid of the passive and you have ‘the parties may amend this agreement, but only by a written agreement signed by each party’. This too is language of limited discretion, but makes clear that an oral amendment is not a violation with a remedy, but a nullity.
You moved the goalposts. The change from passive to active voice doesn’t affect meaning. What does effect meaning is your “but only,” which turns this into a condition.
I can’t get worked up about the calling-it-an-amendment-even-if-it’s-not-effective issue. Even if it’s not effective, the document in question will be called an amendment, or the parties will say that they’re amending; referring to it as an amendment in the contract simply reflects that reality. Furthermore, I can’t see this resulting in any confusion.
I like #1 better simply because I think it sounds friendlier.
A thought I had when reading your post: what if the clause said something like, “An attempt to amend this agreement will only actually amend this agreement if it has been made in writing and signed by both parties.”
I was thinking that in each of your three examples (and in every such clause I’ve ever drafted), stating that an amendment isn’t effective unless made in a certain way necessarily acknowledges that an amendment can be made even though it won’t be effective. Why not make it clear that any attempt to amend will fail unless made in a certain way? I’m not really arguing for that type of construction but am just wondering why I haven’t seen it given the number of pedantic people in our profession (myself included, at times).
Your preference for 1 is consistent with a general preference for stating things positively.
Regarding your other thought, see the other comments.
Thanks. Should have read previous comments!
The parties may amend this agreement only by means of a writing signed by both.
No, that won’t work: see Westmorlandia’s comment and my reply.
How about:
“This agreement cannot be amended, other than by a writing signed by both parties.”
“Cannot” seems to better convey language of policy rather than “may.” (I admit that I have a bit of a crusade against “may” and “allowing” parties to do things that you haven’t otherwise restricted them from doing.) It would also solve the “purported amendment” dilemma noted in the other comments.
“Cannot” refers to physical capability, so I don’t think it’s appropriate for contracts.
Ken:
And further, if you switched to “will” to reflect language of policy and changed the passive voice into active, then you have “the parties will not amend this agreement, other than by a writing signed by both parties.” That seems like it would engender confusion over whether it is language of policy or just a prediction of the future.
Chris
Hmmm. I’ll have to think about that. I’ve never limited use of “can” or “cannot” to physical capability. Rather, I think about it as referring to capability generally. (My initial reaction to your reply was: that cannot be the case, can it?)
Ken:
#4. None of the above.
For an amendment to this agreement to be effective, it must be in writing and the parties must sign it.
In fact, the clause I use also applies to rescission and revocation, and continues with “but it requires no consideration.”
Chris
Yeah, I know, but that sidesteps the question!
I would opt for 1. I prefer to avoid negatives unless necessary.